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More on ICBC Injury Claims and Future Wage Loss

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

If you are injured through the fault of another motorist in BC and advance a tort claim with ICBC can you receive damages for future wage loss even if you have sustained no past wage loss by the time of settlement or trial?  The short answer is yes and today 2 cases were released by the BC Supreme Court illustrating this principle.  
In the first case (Kasic v. Leyh) the Plaintiff was injured in a 2004 rear-end collision.  He suffered relatively serious and chronic injuries which were summarized as follows by Madam Justice Morrison of the BC Supreme Court:

[138]      Mr. Kasic’s headaches and neck pain which he suffered immediately after the accident resolved within a fairly short time.  However his lower back pain has not.  Ever since the accident, he has had serious and chronic pain.  That continues to this day.  He has been motivated and compliant with regard to all treatments suggested, with the exception of the Pulsed Signal Magnetic Therapy.

[139]      The medical evidence is not in complete agreement as to the exact diagnosis that is causing the pain in the lower back; Dr. McGraw believes that it is the sacroiliac joint, Dr. Hershler is of the opinion that it is a bulging disc irritating a nerve, or a combination of that and the sacroiliac joint.  But there is agreement that Mr. Kasic’s symptoms are aggravated by his activities.  And there is certainly agreement from all the evidence tendered that Mr. Kasic is in continuous and serious pain.

[140]      Will it be a permanent disability?  Dr. Hershler holds out hope that there could be a significant improvement if Pulsed Signal Magnetic Therapy were pursued.  But this is not a form of treatment widely recognized by the medical profession, and certainly not by Dr. McGraw.  Dr. McGraw seemed to hold out hope that if there were a correct administration of the injection of the therapeutic block, that this could eliminate some or much of Mr. Kasic’s pain.  Certainly the one injection in October 2008 in that area worsened Mr. Kasic’s condition.

[141]      Whether either or both of these suggested treatments are to be tried will be a matter between Mr. Kasic and his medical advisors.  But at the present time, the evidence remains that Mr. Kasic is suffering continuous and debilitating pain, and it has been chronic pain since the date of the accident.  It has changed him physically, mentally and emotionally.

[142]      The changes to Mr. Kasic’s life as a result of his injuries are many.  He continues to need pain medication.  His previous activities of bowling, tennis, soccer, bocce ball, baseball and picnics are no longer activities in which he can participate.  He can help very little around the house, whether it is vacuuming, loading or unloading the dishwasher, moving furniture, or doing yard work.

[143]      He cannot plan to buy his own home, as he can no longer do the jobs and the outside work that he would normally have done.  His leisure activities with his wife and children have been diminished dramatically, as has his intimate and sexual life with his wife.  He has continuous problems sleeping, and his wife often sleeps in another room.  Mr. Kasic’s mood, disposition and temper have changed significantly.  He cannot do the most simple things such as dressing himself, taking a shower or brushing his teeth without unusual discomfort, positioning and pain.

[144]      An undisputed hard worker, Mr. Kasic stated, “I like to work hard to make more money for my family.”  His work history has indicated that, both before and after the accident.

[145]      Mr. Kasic’s ability to earn in the future has been compromised.  It is an asset he has, in part, lost.  His injuries have rendered him less capable overall from earning income from all types of employment, particularly those that require twisting, bending, standing, sitting for any length of time, or involve any kind of heavy work.  He is less marketable or attractive as an employee to potential employers.

[146]      One presumably has an obligation to advise a future employer if there are concerns such as chronic back problems.  This plaintiff has lost the ability to take advantage of job opportunities which he might otherwise have had.

[147]      Mr. Kasic appears to consider himself less capable and less valuable as a person, because of his condition.  He was 45 when this accident occurred.  He is 50 years of age now.  The real probabilities he faces are fewer jobs available to him, the chance of losing a job or jobs, and possibly having to retire early.  His reduced level of energy and inability to sustain work are factors to be considered.

Despite these serious and permanent injuries the Plaintiff had suffered a minimal wage loss by the time his tort claim against the at fault motorist went to trial.  In fact, the Plaintiff’s earnings increased from the time of the collision to the time of trial.  Depsite this the court held he was entitled to damages for loss of earning capacity and in assessing this loss at $100,000 the court reasoned as follows:

[152]      On the issue of loss of earning capacity, clear guidance can be found in the judgment of Huddart J.A. in Rosvold v. Dunlop.  Mr. Kasic’s capacity to earn income is an asset which has been, in part, taken away from him.  I have found that he has a permanent partial disability, and that limits his work in a number of areas, which in turn impairs his earning capacity.

[153]      The defence seems to suggest that Mr. Kasic has reached his goal upon coming to Canada, that his work as a caretaker together with a rental apartment in subsidized housing suggests that he has reached his earning capacity and goals.  They point to his past earnings, and note that he has steadily increased his earnings, which is true.  But as the courts have reminded us, past earnings are only one factor to consider.

[154]      The standard of proof to be applied in making an appropriate damage award under this category is simple probability, not the balance of probabilities.  And the Athey case reminds us that possibilities and probabilities, chances, opportunities and risks all have to be considered, as long as they do not amount to mere speculation.

[155]      Counsel for the plaintiff suggests that there is the possibility that Mr. Kasic will have to retire early, and I agree that this is a possibility.  Counsel argues that even if he had to retire just three years early, this would be a loss equivalent to $150,000.  This is based on Mr. Kasic’s earnings in 2007 of just over $40,000, and both counsel have factored in an additional $10,000 because of the generous housing allowance and benefits.  This would amount to a real loss of $50,000 a year or $150,000 if Mr. Kasic retired three years early.

[156]      Taking into account negative as well as positive contingencies, in my view an appropriate damage award for loss of earning capacity would be $100,000, and I award that amount.  In my view, the position taken by the defence with regard to this issue has been unrealistic, and their suggested figure of $10,000 under this category of damages does not meet the test of fairness and reasonableness.

In the second case released today (Weibe v. Peters) the Plaintiff was injured in a 2003 motor vehicle collision.  The Plaintiff was a career tradesman who worked as a vinyl deck installer.  As a  result of the collision Mr. Justice Grist of the BC Supreme Court found that the Plaintiff “will continue to have long term back pain fron the injuries suffered fron the collision which will restrict him from certain forms of physical activity...”

Despite his injuries the Plaintiff lost a minimal amount of time from work by the time of trial.  In awarding $125,000 for the Plaintiff’s diminished earning capacity Mr. Justice Grist engaged in the following useful analysis:

[32]        The wage loss prior to the date of trial in this case is confined to a minimal number of days off because of back pain, with some time loss to attend doctors’ appointments and physiotherapy. The plaintiff has not been able to provide a record of this wage loss and I cannot fix any sum under this head. As to loss of future earning capacity, I accept that Mr. Wiebe took his present form of employment because he was not able to maintain the physical demands of installations of vinyl decks. Further, he was not able to obtain a management position that would have relieved him from the demands of actual installations. He acted appropriately in taking the position he now holds, which pays the same as his past employment without the benefits which that employment offered. Again, there is no evidence of the value of lost benefits. I accept the evidence that the employment through Mr. Hepple has very little security. He is the only employee and dependent on success of both the turkey farm and the concrete mantle manufacturing business. Mr. Hepple is happy with the plaintiff’s work, however, as both the plaintiff and Mr. Hepple acknowledged, the earnings provided are probably more than this form of employment can justify. If Mr. Wiebe cannot continue in this form of work, he will likely have to retrain or find some opportunity as a manager in a deck installation company, a form of work he hasn’t been able to secure despite efforts in the past. In light of the risk inherent in being let go by his present employer, on balance I think it most likely that Mr. Wiebe will have to face this change of employment in the future, and that retraining is the most likely prospect. I keep in mind the factors mentioned in Kwei v. Boisclair, [1991], B.C.J. No. 3344 (C.A.), and Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.). In setting damages under this head of loss, specifically:

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or less attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[33]        The plaintiff has been well regarded by his employers and has shown industry and responsibility to his family in retaining employment through the difficulties to the present time. I expect this will serve him well in the future. Nonetheless, retraining and start-up in a substitute form of employment will require a considerable period of time before Mr. Wiebe will be able to reproduce his past level of earnings.

[34]        The cases cited vary widely in fixing the loss of future earning capacity. At the high end, in Fox v. Danis, [2006] B.C.J. No. 1437 (C.A.), damages under this head of loss totalled $750,000. This however, was a case involving an individual likely to lose all forms of full-time employment. In Demedeiros, the head of damage was compensated in the sum of $180,000. This case, however, involved a stone mason who may have lost the opportunity to succeed his father in a fairly remunerative family business. In Kerr, the plaintiff was a 54 year old school teacher who had lost his ability to participate actively in sports, but who continued in his employment. It was judged that he may be forced to retire earlier and may be restricted in gaining employment after retirement. Damages under this head were assessed in that case at $75,000.

[35]        I view the likely loss here as greater in scope than indicated in Kerr but not of the degree of loss in Demedeiros and Fox. I think the appropriate level assessment under this head is the sum of $125,000.

Jury Trials and Your ICBC Injury Claim

Written by admin on . Posted in Civil Procedure, Jury Trials. 121 Comments on Jury Trials and Your ICBC Injury Claim

Personal Injury Trials carry a certain element of risk with them.  Typically there are 2 competing medical theories with respect to the extent of injury and connection to trauma.  Additionally there is often disagreement as the value of damages for these injuries by the lawyers involved regardless of which sides medical evidence is accepted.  Furthermore a certain injury can be valued differently by different judges but varying results may be acceptable provided the compensation rests within the conventional range of damages for similar injuries.  All of this adds to the risk of trial and the difficulty of attaching a specific value to any given ICBC claim for pain and suffering.
Injuries can best be valued in ranges and the best one can do to determine the likely range of an ICBC pain and suffering claim is to look to previous court judgements for guidance.   Judges have to give reasons for their verdict, summarize the evidence they accept and award a specific figure for non-pecuniary loss.  If you look up enough similar cases you may be able to come up with a range of potential damages for pain and suffering for categories of injuries.  (click here for a previous discussion of some of the factors that go into valuing pain and suffering in BC tort claims)
Jury trials carry an additional element of risk in BC Personal Injury Claims.   One of the main reasons why jury trials are less predictable than judge alone trials is because jurors are not permitted to be given a range of damages for non-pecuniary loss by the lawyers arguing the case.  The BC Court of Appeal imposed this restriction on lawyers and this remains the law in BC.
In your typical ICBC claim that heads to trial with a jury 8 members of the public with little or no experience attaching a dollar figure to pain and suffering will be asked to value a Plaintiff’s injury.  These 8 members of the public will not be given guidance from the Court or from the lawyers involved as to what an appropriate range of damages is.  This may sound strange but its true.  Without referencing precedent its easy to understand how different juries can have wild swings in the amount of money they award a plaintiff for pain and suffering in an ICBC injury claim.
Reasons for judgement were released today by the BC Supreme Court illustrating the type of low award juries can award in ICBC Claims.
In today’s case (Cairns v. Gill) the Plaintiff sued for damages as a result of a 2005 BC Car Crash.  Madam Justice Gill, the presiding trial judge, summarized the evidence led by the Plaintiff at trial as follows:

[3]           The injuries sustained by the plaintiff were, in a relative sense, of a minor nature.  Ms. Cairns testified that her neck was sore immediately after the accident and she developed a headache.  By the next day, she also had pain in her shoulders.  She went to a drop-in clinic and was given a referral to massage therapy, but she did not attend because such therapy had not assisted in the past.  Some time after the accident, she began to feel pain in her low back.  It was Ms. Cairns’ evidence that her headaches lasted for several months and her neck and shoulder pain persisted for approximately one year.  Her low back pain resolved approximately a year and a half after the accident.  As to the frequency of her pain over the periods in question, she testified that she had pain on a daily basis for one or two weeks and thereafter, it came and went.

[4]           Ms. Cairns testified that her injuries precluded her from engaging in certain activities such as walking, running and attending aqua fit classes and affected her ability to lift and carry.  Her inability to engage in pre-accident activities also led to weight gain.  At the time of the accident she was employed at The Brick and was attending university.  It was her evidence that she missed two days from work, one immediately after the accident and the second, some time later. 

 In today’s case the jury awarded a mere $500 for the Plaintiff’s pain and suffering.  Granted it is unknown whether the jury accepted or rejected the Plaintiff’s evidence of injury, however, assuming it was accepted one would be hard pressed to find a judgement this low by a BC Supreme Court judge for similar injuries.

Perhaps if the jury was given a range of damages for similar injuries the Plaintiff would have received a better result.  Perhaps if the jurors knew what was typically awarded for such injuries their award would have been in the more conventional range.   Maybe none of this would have made a difference in the Plaintiff’s case but it just seems to make good sense to let juries have the same information judges have when it comes to valuing pain and suffering.  What are your thoughts?

One More Rule 37B Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 55 Comments on One More Rule 37B Case

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, giving more interpretation to Rule 37B in ICBC Injury Claims (click here to read my previous posts on this topic).
In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a 2004 motor vehicle crash.  The defendant made an offer to settle the case for $20,000 plus costs and disbursements in 2006.  This offer was rejected and the plaintiff proceeded to trial.  After a 10 day jury trial in early 2009 damages of $2,200 were awarded.
The defendant applied for double costs from the date of the offer onward.  Mr. Justice Kelleher refused to grant this motion however he did award the Defendant costs from the date of the offer onward.  In doing so he made the following observations about Rule 37B:

[7]                Rule 37B came into force in July 2008.  It is common ground that Rule 37B applies, even though the offer was made before Rule 37B came into effect.  Subrules (4), (5), and (6) are relevant here:

Offer may be considered in relation to costs

(4)        The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5)        In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a)        deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b)        award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

Considerations of court

(6)        In making an order under subrule (5), the court may consider the following:

(a)        whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)        the relationship between the terms of settlement offered and the final judgment of the court;

(c)        the relative financial circumstances of the parties;

(d)        any other factor the court considers appropriate.

[8]                Here the defendant seeks an award of double costs pursuant to Rule 37.  I turn to the considerations in Rule 37B (5)(b) and (6).

(a)        Whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date.

[9]                The plaintiff argues that, at worst, costs should only be awarded to the defendant commencing November 6, 2008.  That is when the defendant forwarded the report of Dr. Matushak, an orthopaedic surgeon who conducted an independent medical examination and whose report was not favourable to the plaintiff.  Before that time the plaintiff had the reports of her family doctor and two specialists.  All three of these physicians were supportive of her claim that her symptoms were related to the accident.

[10]            The difficulty with this submission is that these three reports were based on an acceptance of what the plaintiff told them.  Simply put, the jury did not believe what these physicians believed.

[11]            I conclude that the offer ought reasonably to have been accepted one week after it was made. 

(b)        The relationship between the terms of the settlement offered and the final judgment of the court

[12]            This factor favours an award of costs to the defendant.  The jury awarded an amount substantially less than the defendant’s offer.

[13]            However, this factor is not in itself determinative.  Decisions on damages by juries are somewhat more difficult to predict than assessments by judges.  Madam Justice Humphries put it this way in Lumanlan v. Sadler, 2009 BCSC 142, [2009] B.C.J. No. 224, at para. 35:

As well, an assessment of non-pecuniary damages, as every trial judge knows, is a difficult and somewhat subjective task, as hard as one tries to be consistent with other judgments.  A jury verdict can, of course, be even more disparate when compared to assessments by judges.

[14]            I agree with counsel for the plaintiff that the court should be cautious in placing too much weight on this factor.

(c)        The relative financial circumstances of the parties

[15]            The plaintiff is in difficult financial circumstances.  There is no evidence regarding the defendant’s financial position.  Counsel for the plaintiff argues that it is appropriate to consider the relevant circumstances of Ms. Smagh and the Insurance Corporation of British Columbia, which defended the action on the plaintiff’s behalf.  She relies on Radke v. Parry, 2008 BCSC 1397, 64 C.P.C. (6th) 176, where Madam Justice Boyd made note of the “substantial disparity in financial circumstances between the parties”: at para. 42.  Her Ladyship went on to state at para. 42:

The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.

[16]            A different view was expressed in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, where Hinkson J. made the following comments:

[32]      Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.

[33]      While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]      The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[17]            In Abma v. Paul, 2009 BCSC 60, [2009] B.C.J. No. 87, Madam Justice Gropper agreed with the reasoning in Bailey.  She distinguished the different circumstances in Radke, where the defendant accepted the plaintiff’s offer after 11 days of trial.

[18]            The decision in Bailey was also followed in Kanda v. Jackson (19 December 2008), Vancouver M030259 (S.C.)).

[19]            Although the matter is not settled, the emerging consensus appears to be that the financial position of ICBC is not determinative.  As Butler J. said in Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, at para. 23:

[T]here will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[20]            This third factor is not helpful in this case.

(d)        Any other factor the court considers appropriate

[21]            While the relative financial positions may not be determinative, I am prepared to consider the financial circumstances of the plaintiff.  They are poor.  She invested in a laundry business which has now failed.  The lender holds a claim over her home.  As well, she is responsible for some or all of a $62,000 personal guarantee given in connection with the business.

[22]            The plaintiff has begun working at a small firm on an as-needed basis for $11 per hour.  She is unable to pay her bills.  She owes her law firm some $40,000 for disbursements.  These circumstances militate against an award of double costs.

[23]            I conclude that the plaintiff is entitled to costs up to November 2, 2006.  The defendants are entitled to costs, but not double costs, from November 2, 2006, to date.

[24]            There has been mixed success on this application for costs.  No costs are awarded in connection with this application.

Medical Records and ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized.

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.

 

Examinations for Discovery and Proper Objections in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Examinations for Discovery and Proper Objections in ICBC Injury Claims

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, discussing examinations for discovery in ICBC Injury Claims and the proper way to frame objections.
In yesterday’s case (Day v. Hume) the Plaintiff allegedly suffered a brain injury as a result of a serious motor vehicle accident.  In the course of being examined for discovery the Plaintiff’s lawyer ‘intervened on several occasions and, in the end, terminated the examination after 50 minutes over (the objection of the ICBC defence lawyer).’
As a result ICBC’s lawyer brought a motion seeking to dismiss the Plaintiff’s lawsuit on the basis that he unreasonably refused to answer questions put to him in discovery.
Madam Justice Smith of the BC Supreme Court declined to grant ICBC this relief and in doing so highlighted some points about the proper course of objecting to questions in examinations for discovery.  I reproduce the highlights of the courts discussion below:

[20]            The principles emerging from the authorities are clear.  An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.  Intervention should not be in a form that suggests to a witness what a desirable answer might be.  As stated by Garson J. in Forliti v. Woolley, the proper conduct of counsel is to state the objection to the form of the question and the reasons for the objection, but it is not appropriate to make comments, suggestions, or criticism. 

[21]            There was no real disagreement about the legal principles, except that Mr. Maryn submitted that it must be recognized that the practice has changed since Cominco was decided in that it is now necessary to bring on an application in Chambers with respect to disputes about relevance or other matters at examinations for discovery.  Mr. Maryn submitted that it is quite appropriate for counsel to have a discussion about what might make a line of inquiry relevant and he suggested that if counsel for the defendant had been more forthcoming in this case, some of the problems leading to this application might have been avoided. 

[22]            Mr. Maryn also submitted that, in this case, where his client has suffered a brain injury and consequential memory loss, it was appropriate to remind him during the course of the examination for discovery not to make guesses.  Mr. Duplessis’s submission on that point was that it is not appropriate to remind a witness of such instructions and that any of Mr. Maryn’slegitimate concerns could be resolved through appropriate re-examination at the end of the examination for discovery. 

[23]            Looking at the transcript in this case, while possibly Mr. Maryn would have been justified in reminding his witness once not to guess or speculate and his initial comment to that effect was probably appropriate, his statement after question 39… went well beyond a reminder….  

[24]            There was also disagreement as to whether or not counsel for the party under examination for discovery can make statements for the record at the examination for discovery.  Mr. Duplessis took the position that it is not open to counsel to state things for the record.  I disagree.  Although, as I have stated, counsel for the party under examination should not make comments unless they are clearly necessary, it may be appropriate for counsel making an objection to state briefly what the objection is based upon.  First, that may lead to a resolution of the matter through discussion between counsel and avoid this kind of application.  Second, it facilitates a determination of the issue by the court if there is an application to compel an answer.  However, objections by counsel should be concise and to the point….


Motor Vehicle Cases and Expert Reports Addressing Fault

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Motor Vehicle Cases and Expert Reports Addressing Fault

I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

Can ICBC Talk to my Doctors About my Injuries?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 102 Comments on Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

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

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues.

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 Court: Ireland 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.

 

$120,000 in Damages for “Gifted Athlete” Injured in BC Car Crash

Written by admin on . Posted in ICBC Knee Injury Cases.

Reasons for judgment were released last week (Atkison v. Niles) by the BC Supreme Court awarding just over $120,000 to a ‘gifted athlete’ who was injured in a 2003 BC motor vehicle collision.

The Plaintiff was 16 at the time of the collision. He was a passenger in a vehicle involved in an intersection crash. As a result he suffered a knee injury which was expected to have some permanent consequences. The injury was diagnosed as either a posterior cruciate ligament tear or damage to the trochlea groove of the femur. As a result of this knee injury it was agreed that the Plaintiff had an increased risk of developing progressive osteoarthritis eventually requiring knee replacement surgery.

The Plaintiff played as catcher for an ‘elite’ league in White Rock at the time of the crash. By the time of trial in 2009 the Plaintiff was playing at the University of New Mexico as a first baseman and had aspirations of going pro after graduating.

In quantifying the Plaintiff’s pain and suffering (non-pecuniary damages) at $55,000 the Court noted the following facts:

[15] More significantly, he suffered a permanent injury to his left knee that has caused and will continue to cause intermittent pain, particularly with certain body positions. He will suffer the early onset of osteo-arthritis and require knee replacement surgery, likely in his 40’s. If he lived a sedentary life, as Dr. Hill recommends, the time for that surgery could be extended to the 60’s. However, the plaintiff is a gifted and active athlete. Extending the time for surgery by remaining inactive would constitute a drastic negative impact on his lifestyle. There is evidence that, because of the limited life span of a knee replacement, other surgeries may be required. While the defendant points to ongoing medical research which may provide other alternatives in future, that remains speculative at present.

[16] A significant impact for this plaintiff has been the impact on his baseball career. The evidence is that he was particularly suited to playing the position of catcher, a position he has not been able to occupy since the accident, nor will he ever. There is evidence, which I accept, is that he would have been most attractive to professional baseball had he been able to play that position. There is also evidence that, playing at first base, he does not have the size that professional baseball seeks for that position. There is also evidence that the knee injury had some impact on his foot speed, which would also diminish his chances of playing professionally.

In assessing the Plaintiff’s loss of earning capacity (future wage loss) at $100,000 the Court noted the following:

[20] The plaintiff will be graduating from university with a general degree. Thus he has no earnings history. As earlier stated, his goal has long been to play professional baseball. That has not been a unrealistic goal given his exceptional talent.

[21] However, he is less attractive to professional baseball because of the knee injury, both because of that fact and the fact that the injury required him to move permanently to a position where he is less valuable. The evidence of professional baseball scout Mr. Archer in that regard is consistent with common sense. Measuring that lessened opportunity is a particularly difficult exercise at his youthful age, except to say that it is real and not insignificant.

[22] If that dream is not realized, the plaintiff intends to seek a career as a firefighter or in a trade, as his brother and father have done. While there is no expert evidence on the issue, It is plain and obvious that the plaintiff, with his permanent knee injury, will be less attractive to future employers, particular those occupations requiring physical exertion.

[23] Finally, I must consider the very real possibility that the plaintiff will be forced to undergo at least one major knee surgery and the effect this will have on his employability and ability to earn income in the physically demanding careers most likely open to him.

The Plaintiff’s total damages were then reduced by 22.5% because he was not wearing his seatbelt at the time of the collision and this contributed to the severity/cause of his injuries.

More on Mitigation of Damages in ICBC Injury Claims

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized.

I’ve written previously about mitigation of damages in ICBC Injury Claims and reasons for judgment were released today by the BC Supreme Court (Ponipal v. McDonagh) applying this legal principle.

 Mitigation, in general terms, means taking reasonable steps to reduce one’s damages.  In a personal injury lawsuit mitigation usually revolves around taking reasonable steps in following the advice of treating physicians.

In today’s case the Plaintiff was injured in a 2007 intersection crash in Vernon, BC.  The Plaintiff suffered various soft tissue injuries.   In the course of her recovery an exercise and conditioning program was recommended to the Plaintiff.    Mr. Justice Blair found that the Plaintiff ‘unreasonably failed to pursue the program’ and that doing so would have reduced the effect of her injuries.

As a result of this ‘failure to mitigate’ Mr. Justice Blair reduced the Plaintiff’s award for non-pecuniary damages (pain and suffering) of $35,000 by 10%.  The discussion with respect to mitigation of damages was set out at paragraphs 25-29 which I set out below:

 

[25]            The defence points to Mrs. Ponipal’s omission to embark on a structured exercise and conditioning program as recommended by Drs. Travlos and Reebye as constituting a failure to mitigate the physical difficulties arising from the collision.  The defence submits that this omission by Mrs. Ponipal ought to result in the reduction of her general damages.

[26]            Antoniali v. Massey, 2008 BCSC 1085 outlines a framework which I will follow in this case in determining whether the defendant has established that Mrs. Ponipal failed to mitigate her damages.  The questions are as follows:

1.         whether an exercise and conditioning program under a trainer’s guidance would have reduced or eliminated the effect of the injuries;

2.         whether the reasonable plaintiff in Mrs. Ponipal’s circumstances would have followed such a program;

3.         whether Mrs. Ponipal unreasonably failed to follow such a program; and

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

[27]            I am satisfied from the evidence of Drs. Travlos and Reebye, both being specialists in physical medicine and rehabilitation, that an exercise and conditioning program under a trainer’s guidance would have reduced the effect of Mrs. Ponipal’s injuries.  I am further satisfied that a reasonable individual in Mrs. Ponipal’s circumstances would have undertaken such a program and that she unreasonably failed to pursue the recommended program.  Mrs. Ponipal testified that there were two reasons why she did not embark on an exercise program, the first being that she wanted to know the results of the nerve conduction study suggested by Dr. Travlos before she undertook the exercise program.  She expressed concern that the exercise program might worsen the numbness and tingling in her right arm and hand, negatively affecting her ability to play the piano.  However, there is no evidence that she discussed that concern with Dr. Travlos or any other of her caregivers.  The second reason she stated was the financial burden imposed in hiring a personal trainer.  However, this is not a family devoid of means and Mrs. Ponipal’s husband Garry testified that they would have done that which was necessary to assist his wife’s recovery.

[28]            The extent to which Mrs. Ponipal’s non-pecuniary damages would be reduced as a result of her failure to take the exercise and conditioning program is difficult to assess.  In Antoniali,Preston J. reduced the pre-trial non-pecuniary damages by 15 percent and the post-trial non-pecuniary damages at 50 percent.  In Job v. Van Blankers, 2009 BCSC 230, Ker J. reduced the plaintiff’s non-pecuniary damages by 10 percent to reflect her failure to mitigate her damages.

[29]            I assess Mrs. Ponipal’s failure to mitigate by reducing her non-pecuniary damages by 10 percent.