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BC Supreme Court Discusses Pedestrian Visibility in Negligence Claims

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 64 Comments on BC Supreme Court Discusses Pedestrian Visibility in Negligence Claims


Reasons for judgement were released yesterday by the BC Supreme Court considering whether a pedestrian involved in a collision was at fault for not being visible enough to the motorist.
In yesterday’s case (Smaill v. Williams) the pedestrian was struck by a minivan while he was walking on a dirt road in dusk conditions.  When he heard the vehicle approaching he “took a few quick steps to the side out of the travelled path of the road”.  Unfortunately he could not get out of the way and was “thrown up onto the hood, striking his back and shoulders, and then was thrown to the ground on his hands and knees“.
The Defendant argued that the Plaintiff was partially at fault for the accident for wearing dark clothing, not having a flashlight and not wearing a reflective traffic vest.  Madam Justice Russell rejected this argument and in doing so provided the following reasons:

[68] I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.

[69] I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.

[70] I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.

[71] I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.

[72] I find no contributory negligence on the part of the plaintiff.

The Plaintiff suffered some serious injuries to his spine which were expected to cause some permanent restrictions.  In valuing the non-pecuniary damages at $100,000 the Court summarized the injuries and their effect on the Plaintiff’s life as follows:

[62] I accept the evidence of Dr. McKenzie.  I found him to be a careful and persuasive witness.  I accept his medical finding that the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an injury to the sacroiliac joint and that formerly asymptomatic disc bulges and protrusions became symptomatic as a result of his injuries.  I accept that the plaintiff has proved on a balance of probabilities that the symptoms, including non-specific back pain that he currently suffers from, including disc protrusion, were caused by the first accident and the pain from those injuries was aggravated by the second accident.

[63] While none of the doctors could say with certainty that the disc problems were caused by the accident, this is not the standard required.  Dr. McKenzie testified, and I accept, that it is more probable than not that they were caused by the injury.  This is supported by the evidence of Dr. Dercksen who noted the injuries were more than normal degeneration for someone of the plaintiff’s age.

[64] Therefore, I agree with the plaintiff that, on a balance of probabilities, but for the negligence of the defendants, the plaintiff would not have sustained the injuries that he did, and  the plaintiff has met the test for causation:  Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 18-28, [2007] 1 S.C.R. 333. ..

[87] As a result of these accidents, the plaintiff sustained significant injuries and suffered from a great deal of pain, for which he is entitled to recover damages.  However, while I have the greatest sympathy for the plaintiff’s emotional suffering, there is evidence before this Court that this is a pre-existing condition from which the plaintiff had already been suffering and therefore this is not a ‘thin-skull’ situation.  The defendants are not liable to compensate the plaintiff for a condition which was already manifest at the time of the accident.

[88] In light of the plaintiff’s suffering, and taking into consideration his pre-exisiting condition and its contribution to his chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.

Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, independent medical exams, Uncategorized. 56 Comments on Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"


As readers of this blog know when people sue for damages in the BC Supreme Court as a result of an Injury Claim they give up certain privacy rights.  Documents need to be disclosed to opposing counsel, examinations for discovery can be compelled, even ‘independent‘ medical exams can be ordered.
In the course of an Injury Claim Rule 30 of the BC Supreme Court Rules permits a Court to order that a Plaintiff undergo a Defence Medical Exam(DME) in order to “level the playing field“.   It is generally accepted that at least one DME will be ordered by the Court if requested in a typical personal injury claim.  Such an order, however, is not an automatic right and reasons for judgement were released today demonstrating this.
In today’s case (Chapman v. Magee) the Plaintiff was injured in “a reasonably nasty motor vehicle accident involving…a car and a motorcycle“.  The Injuries included a flailed chest and a broken ankle.
The Defence lawyer asked that the Plaintiff attend a defence medical exam with a respirologist and an orthopaedic surgeon.   The Plaintiff’s lawyer did not consent and a court motion was brought to compel attendance.  Master Caldwell dismissed the application finding that the materials in support were “significantly wanting“.    The Court noted that while the evidentiary burden on these applications is not high the Court is not a ‘rubber stamp‘ and some evidence needs to be tendered.  Specifically Master Caldwell stated:

There is nothing in the material where counsel opines as to the need for these reports or these examinations to be done, which, as I see the case authority, and in particular, Astels, para. 23, where the court says:

In addition to the paralegal’s affidavit, there was also in evidence a letter from counsel for the defendants to counsel for the plaintiff concerning the proposed medical examination in which counsel for the defendant said:

You will be asking the court to retrospectively decide whether or not the plaintiff was totally disabled the date the action was commenced.  Clearly medical opinion in that regard is relevant.

[5] He is opining there as counsel as to the importance and purpose of the Rule 30 examinations.  In my view, that sets out a bare minimum, and I do not want to be overly technical because it may or may not be efficient to go on that basis, but in my view there is not a scintilla of evidence here from counsel or otherwise as to the use that this information would be put to.  I can certainly speculate and it would appear from the pleadings that I could speculate as to what use it might be made, but far and away from what the minimum level is, it would be nice on these applications to have letters or some kind of material from a doctor opining as to why they need to see the person.  That certainly goes beyond what would be needed, but in my view, Astels puts down a bare minimum.

[6] And as I say, I may be being overly technical, but I do not think so.  These are not rubber-stamp applications and they cannot become rubber-stamp applications.  There must be some substance relating to what this information is going to be used for and what the focus is going to be.  And, frankly, having gone over the lunch hour and again read the letters, I can find no such supporting evidence in the material filed by the defendant.

[7] On that basis, this application for today by the defendants is dismissed.  It is dismissed without prejudice to their right to re-bring the application on proper material because I think there may be something out there and I think Rule 1(5) does say “on the merits” and it should not be just simply a technical slam-dunk there.  But the application on the basis of the material before me has to be dismissed in my respectful view.  It has to be dismissed on the basis that costs will be to the plaintiff in any event of the cause on this because the material brought by the defence simply is not adequate.  The issue of costs in subsequent application, should the defence seek to bring such an application, can be dealt with by the court that hears that application.

As with all civil procedure cases I will cross reference this with the New BC Supreme Court Civil Rules.  Rule 30 is replaced with Rule 7-6 and the wording is almost identical under the new rules making precedents such as this one useful under the soon to be in place new system.

Court of Appeal Discusses Liability of Cyclists Riding In Crosswalks

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


Reasons for judgement were released today by the BC Court of Appeal discussing the law of negligence with respect to cyclists who are struck by a vehicle while riding on a cross-walk.
In today’s case (Bradley v. Bath) the Plaintiff was involved in a 2003 BC Cycling/Motor Vehicle Accident.  He was riding his bicycle on the sidewalk heading towards a gas station.  At the same time the Defendant was driving a car attempting to exit the gas station.  The Defendant struck the Plaintiff.  The Plaintiff sued for damages and succeeded.  The trial Judge Found the Defendant 100% at fault and damages of $396,753 were awarded.  In coming to her conclusion  she stated  “the plaintiff was not contributory negligent because the plaintiff could have been struck by the defendant’s vehicle if he had been a jogger, rollerblader or regular pedestrian rather than riding his bicycle.  Thus, she concluded that the plaintiff’s breach of the Motor Vehicle Act was not causally connected to the accident.”
The Defendants appealed arguing, amongst other things, that the Trial Judge was wrong in finding the motorist 100% at fault.  The Appeal was successful and the Court of Appeal concluded that the cyclist was 50% at fault for the crash.  In reaching this decision Mr. Justice Tysoe stated as follows:

[27] In my respectful view, the trial judge did not ask the correct question.  The proper question was not whether a jogger, rollerblader or pedestrian could have been hit by the defendant’s vehicle.  The correct inquiry was to determine whether the plaintiff failed to take reasonable care for his own safety and whether his failure to do so was one of the causes of the accident.  While the judge acknowledged that the plaintiff was under a heightened duty of care because he was in breach of the law by riding his bicycle on the sidewalk, she failed to give effect to the heightened duty because she did not consider what care had been taken by the plaintiff when he saw the defendant’s vehicle moving towards the exit from the gas station.

[28] In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident.  Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic.  He saw the defendant’s vehicle moving towards the exit he was approaching.  Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle.  In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station…

[30] I am of the view that the fault of the parties in this case is equal.  The plaintiff’s fault was riding his bicycle on a sidewalk against the flow of traffic and continuing to ride across the path of the exiting vehicle without ensuring his way was clear.  The defendant’s fault was his failure to keep a proper lookout when exiting the gas station.  I do not believe that one party is more culpable than the other.

This case is also worth reviewing for the Court’s discussion of “In Trust” Claims and awards for “Diminished Earning Capacity” which can be found at paragraphs 37 – 52 of the Reasons for Judgement.

BCSC Discusses Non-Pecuniary Damages for Ruptured Breast Impant

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

Reasons for judgement were released today by the BC Supreme Court discussing the value of non-pecuniary damages for a traumatically ruptured breast implant.
In today’s case (Gregory v. Penner) the Plaintiff was involved in a 2006 rear end car crash in Port Coquitlam, BC.  She suffered a variety of soft tissue injuries in this crash which largely resolved and had non-pecuniary damages valued at $30,000 for these.
The Plaintiff also suffered a more unique injury, a ruptured breast implant as a result of the forces of the crash.  The Plaintiff’s plastic surgeon, Dr. Ross Horton, gave evidence that the Plaintiff “had a blow to the left chest secondary to the motor vehicle accident which has resulted in force significant enough to rupture the saline implant and to cause some fat necrosis to the left breast.  Although the fat necrosis has improved, she has been left with a ruptured implant.  This will leave her with permanent disability with breast asymmetry.  At some point in time she should have the ruptured implant removed and replaced with a new intact implant.”
Madam Justice E.A. Arnold-Bailey had positive things to say about Dr. Horton as a witness and accepted “all of his testimony without hesitation“.
The Court went on to assess the Plaintiff’s non-pecuniary damages for the ruptured implant at $65,000.  In reaching this valuation the Court engaged in the following analysis:
[148] In the present case I accept the testimony of the plaintiff that prior to the accident she had symmetrical breasts after breast augmentation surgery.  I accept that she noticed that she had a substantially smaller left breast about three weeks after the accident, and that since the accident she had experiencing pain and burning sensations in the area of her left breast.  I further accept her evidence that at the same time she found the lump in her left breast.  Several weeks later, Dr. Horton diagnosed the lump to be a lump of necrotic fat due to trauma in the area of the ruptured left breast implant.  When I combine their evidence and consider that the plaintiff as the driver of a motor vehicle was wearing the usual shoulder/lap seatbelt across the area of her left upper body including her left breast, I find without hesitation that the plaintiff has established that the accident was at least a partial cause of rupture of the left breast implant and the associated complications.  Thus, the defendant is liable for the injuries sustained by the plaintiff to the area of her left breast, including the rupture of the implant…
[153] In relation to her ruptured left breast implant, I find that the plaintiff has experienced considerable pain, discomfort, disfigurement, and mental stress and anxiety that continue to the present time…
[161] In the present case the left implant will be replaced.  It is not known if the right implant will also have to be replaced to achieve breasts of a similar size.  The plaintiff has endured considerable pain and suffering, the painful and difficult injections of the lump of necrotic fat by Dr. Horton.  She has also had to endure the ongoing discomfort and emotional and psychological upset and distress caused by the ruptured implant remaining in her chest and the very significant disparity in the size of her breasts for a period of three years and three months.  In all the circumstances I find that a fit and proper award in non-pecuniary damages for this injury is $65,000.

$54,000 Non-Pecuniary Damages for Onset of Pain in Pre-Existing Wrist Arthritis

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff $54,000 in damages for a wrist injury.
In today’s case (Zigawe v. Rance) the Plaintiff was involved in a 2006 rear end car crash.  The issue of fault was admitted by ICBC leaving the court to decide the value of the Plaintiff’s injuries.
The Plaintiff suffered various soft tissue injuries which largely resolved by trial.  The main focus of the trial was the Plaintiff’s wrist injury.  The evidence established that the Plaintiff had pre-existing arthritis in her wrist but this was asymptomatic.  The crash caused this pre-existing condition to become painful.  The court valued the Plaintiff’s non-pecuniary damages at $60,000 then reduced this award by 10% for the contingency that the pain may have come on even without the car crash.
In coming to the above valuation Madam Justice MacKenzie reasoned as follows:

[107]     I find the plaintiff experienced neck pain for over three years, but it is almost resolved.  The headaches appeared to be associated with the neck pain and have resolved.

[108]     I also accept the plaintiff’s evidence that the plaintiff’s shoulder pain had mainly resolved six months post-accident but she had some pain in her left shoulder in May 2009, which is now resolved…

[110]     On the whole of the evidence, and in particular that of Dr. Shuckett who agreed the plaintiff’s current overall condition was “not inconsistent with” rheumatoid arthritis, I find it likely that the accident exacerbated pre-existing, but asymptomatic tenosynovitis related to rheumatoid arthritis in the plaintiff’s left wrist.  While it is an atypical presentation in that the condition is not mirrored in the right wrist, this finding makes the most sense.  It is proven on the balance of probabilities.

[111]     I do not accept the defendant’s submission that the rheumatoid arthritis in the left wrist arose independently of the accident.  In my view such a conclusion is not consistent with its temporal connection to the accident, and Dr. Shuckett’s evidence that the inflammation that accompanies this sub-acute condition can take weeks or months to develop…

[114]     Thus, on the totality of the evidence, the accident at least exacerbated the pre-existing tenosynovitis related to rheumatoid arthritis in the left wrist, given its history.

[115]     The swelling and significant, long standing pain has not improved since the accident.

[116]     Thus, I find the accident activated the plaintiff’s pre-existing condition in a wrist that was asymptomatic for some years before the accident.  The left wrist may indeed have remained asymptomatic of tenosynovitis related to rheumatoid arthritis for many years had the accident not intervened.  It may have not manifested into rheumatoid arthritis, given Dr. Shuckett’s evidence as to the nature of that condition.

[117]     The neck injury was caused by the accident and its recovery was probably prolonged as a result of her pre-existing but asymptomatic osteoarthritis.

[118]     The asymptomatic left wrist condition was triggered by the accident, resulting in significant pain and swelling that still has not resolved more than three years post-accident.  Hopefully, the scheduled injection of what is likely cortisone will greatly improve the wrist, but that is unknown, and the plaintiff may require surgery on that wrist.  But for the accident, the pre-existing asymptomatic condition in the left wrist may never have manifested…

[122]     In this case, I agree with the plaintiff that only a modest deduction is appropriate to account for the plaintiff’s pre-existing left wrist tenosynovitis related to rheumatoid arthritis.  It was asymptomatic before the accident.  It might never have resulted in symptoms but for the accident.  However, there remains a measurable risk that it would have detrimentally affected the plaintiff in the future given the plaintiff’s left wrist problem in 2001 as seen by Dr. Hollands.  He thought it might represent early onset of rheumatoid arthritis although I realize the signs and symptoms presented differently in the post-accident wrist tenosynovitis.

[123]     Therefore, in my view, a discount of 10 percent from non-pecuniary damages appropriately reflects the contingency of the condition developing in the future…

[126] In my view, having considered all the evidence and all the cases, non-pecuniary damages of $60,000 discounted by 10 percent, or $6,000, which amounts to $54,000 is appropriate in all the circumstances.

This case is also worth reviewing for the Court’s discussion of credibility.

The Court found that the Plaintiff was a “vague historian” and had a “poor memory“.  The Court also found that the Plaintiff “exaggerated the degree to which she could not use her left wrist.“.  The Plaintiff told her doctor that the wrist was “useless” and this was contradicted by video surveillance evidence obtained by ICBC.   This evidence seemed to negatively impact some of the plaintiff’s claims and the judgement is worth reviewing in full to see how the Plaintiff’s credibility was scrutinized at trial.

BC Supreme Court Discusses Law of Left Hand Turn Intersection Crashes

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Whiplash Cases, Uncategorized.


Perhaps no type of accident has received more judicial attention than intersection collisions between left hand turning motorists and through drivers.  Reasons for judgement were released today by the BC Supreme Court discussing the law of fault when such a collision occurs on a green light.
In today’s case (Basi v. Buttar) the Plaintiff was involved in a January, 2007 car crash in Surrey, BC.  She was travelling through an intersection when the Defendant turned in front of her as she was just about to enter the intersection.  The Defendant said that the Plaintiff was at fault because she was speeding. Mr. Justice Brown found the Defendant 100% at fault for the collision and in doing so provided the following succinct summary and application of the law:

[24] Accidents such as this are a common occurrence. Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the Act] imposes duties both on the driver proceeding through the intersection (the “through driver”) and on the driver intending to turn left. The driver turning left must yield to the through driver where the through driver is in the intersection or constitutes an immediate hazard to the driver turning left. If the through driver does not constitute an immediate hazard, that is, if it is safe to turn left, then the through driver must yield the right of way to the driver turning left provided that the driver turning left has signalled his intention to turn left per s. 172 of the Act.

[25] The main question in this case is whether the plaintiff’s vehicle constituted an immediate hazard to Mr. Sarai when he started his turn, or whether the plaintiff’s car was far enough away from the intersection so that Mr. Sarai could safely turn left. If the former, the defendant should have yielded; if the latter, the plaintiff should have yielded. However, even if one of the parties has the right of way, that does not discharge them from a duty to exercise reasonable care in the circumstances.

[26] Mr. Sarai managed to clear the intersection in sufficient time to avoid a collision; however I accept the evidence of the plaintiff and Mr. Lavergne that the plaintiff’s car and Mr. Sarai’s van nearly collided. And while, as stated, I have some reservations about Mr. Laverne’s impartiality, I have no reason to conclude that he fabricated his evidence about how close the plaintiff was to the intersection when Mr. Sarai made his turn. I find that the plaintiff was too close to the intersection for Mr. Sarai to safely complete his turn and that he should have yielded to the plaintiff in accordance with s. 174 of the Act.

[27] While counsel for the defendant urged me to find that the plaintiff was driving too fast for the slippery road conditions, the fact remains that Mr. Sarai himself confirmed that the plaintiff was driving her vehicle in a controlled and safe fashion as she approached the intersection. Of course, he also testified, in effect, that she did not constitute an immediate hazard to him as she approached, so this evidence about the plaintiff’s safe driving is also somewhat consistent with his position that he could turn safely.

[28] The strongest argument in favour of the defendant comes from the fact that the plaintiff could not control her car and Mr. Lavergne’s evidence that Mr. Sarai made his turn slowly—had he moved more quickly, the plaintiff could have travelled straight through the intersection. This could suggest that the plaintiff may have been driving too fast or over-reacted.

[29] However, I am more persuaded by the evidence that Mr. Sarai started his turn when the plaintiff was too close to the intersection. She attempted to brake and turn to the left to avoid a collision with Mr. Sarai’s van. She lost control because of the slippery road conditions. I cannot conclude on the balance of probabilities that she drove too fast for the conditions. The only evidence of that comes from Mr. Buttar, who I find had limited opportunity to observe. I prefer the evidence of the plaintiff, Mr. Lavergne and Mr. Sarai in this regard. Therefore, I find the defendant Mr. Sarai 100% responsible for the accident for failing to yield to the plaintiff’s approaching vehicle, which constituted an immediate hazard as he commenced his left turn.

The Court went on to award the Plaintiff just over $42,000 in total damages for her injuries.  In assessing her non-pecuniary damages at $30,000 Mr. Justice Brown summarized her injuries and their effect on her life as follows:

[67] This is a moderate soft tissue injury with symptoms prolonged beyond the usual period expected possibly on account of the plaintiff’s clinical history of complaints in the same areas as noted before the accident. However, she was asymptomatic pre-accident, except for occasional headaches. She has steadily improved since the accident. She returned to her to job at the bank by March 19, 2007, a little over two months after the accident, and to the CRS not long after that. She has returned to full time work, with her work hours totalling over 60 hours per week. Recreational activities such as skiing and running have been negatively impacted, and her homemaking capacity has been diminished. She has made a near full recovery from her injuries, and the accepted medical evidence indicates the plaintiff will see a full recovery in the future, though she may suffer minor flare-ups…

[70] The cases cited by counsel encompass the appropriate range of damages for a case of this kind, but of course, each case involves its own factors, and therefore requires an individual assessment.

[71] Based on all the evidence before me, I award $30,000 to the plaintiff for non-pecuniary damages

Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 42 Comments on Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims


Reasons for judgement were published this week on the BC Supreme Court Website dealing with disclosure of past medical records in the context of an ICBC Injury Claim.
In this week’s case (Sidhu v. Dhani) the Plaintiff was involved in a 2006 BC Car Crash and sued for damages.  In the course of the lawsuit ICBC asked that the Plaintiff provide all her medical records for 4 years before the car crash.  There was evidence that the Plaintiff attended one specific GP 236 times in the years before the collision.  The Plaintiff refused to produce these records and ICBC applied to court.  At the hearing the Master largely agreed with ICBC and ordered that the medical practitioners who treated the Plaintiff produce all of their records for the 3 years before the car crash directly to ICBC’s lawyer.
The Plaintiff appealed arguing that the disclosure should not have been ordered or, in the alternative, that the records should go to the Plaintiff’s lawyer first so that clearly irrelevant records could be redacted before sharing the records with ICBC.
On Appeal Mr. Justice Schultes agreed that the the records should be produced but ordered that they be produced with the safeguards the Plaintiff wished.
In coming to this decision Mr. Justice Schultes reasoned as follows:
[8] The learned master ordered the production of the records in what has become known as Jones form, that is, directly to counsel for the third party rather than in so-called Halliday form, in which the plaintiff’s counsel would first have the opportunity to review the records and seek to vet out any matters said to be irrelevant or subject to a privilege.  The learned master did not provide the reasoning underlying this aspect of his decision…

the master drew the inference that the sheer number of medical visits, including the remarkable number to one doctor, made it likely that the clinical records contained information that would be relevant to the plaintiff’s claims.  The learned master’s reasons, though brief, clearly demonstrate that process of analysis.  In particular, the large number of medical visits would be relevant to the plaintiff’s claim that the accident had diminished his employment prospects and ability to earn future income by suggesting some other chronic or ongoing difficulties potentially unrelated to the accident.

[13] To make this distinction clear, it appears to me that speculation and so-called fishing expeditions refer to a situation in which the material in support of an application does not give rise to a reasonable inference that material relating to the matter is likely in the hands of the third party.  Material relating to the matter is, of course, that which directly or indirectly allows a party to advance his own case or damage that of his adversary’s: Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.) which is the standard reference on this point.

[14] It follows that I find that the learned master was not clearly wrong in his decision on this aspect of the case and I would therefore dismiss the first part of the appeal…

[15] The plaintiff further argues that even if the learned master was not clearly wrong in ordering disclosure of these records, he erred to that standard in failing to order their disclosure on the so-called Halliday basis, that is, released first to him so that issues of relevancy and privilege could be considered.  The source of this basis is the decision ofHalliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.).

[16] The value of the Halliday process is to allow potentially privileged material to be preserved until a proper determination of its status has been made and to allow the plaintiff to delete irrelevant or embarrassing or confidential material, or to make it irrelevant by amending his pleadings before discovery: see Halliday, at pages 199 and 200.  The effectiveness of this process, of course, depends on counsel carrying out their duty to disclose relevant material: see Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.).  However, as Lambert J.A. pointed out in Halliday any abuse of this method of disputing relevance can be subsequently punished by an order of costs.

[17] On this issue, the plaintiff relies on Grewal v. Hospedales, (2004), 33 B.C.L.R. (4th) 294 (C.A.), and Gibson v. Mian, 2002 BCSC 1836.

[18] In Grewal, the master was found to have erred in failing to consider in a personal injury accident the relevance of the plaintiff’s medical records from specialist whose areas of specialty appeared to bear no relationship to the types of claims that the plaintiff was advancing.

[19] In Gibson, the master ordered medical records of the plaintiff’s family doctor in Halliday form based on the reasoning that such a doctor is likely to deal with irrelevant issues that could embarrass the plaintiff.  This analysis was as applicable, in the master’s view, to male plaintiffs as to female plaintiffs.  As the master observed:

… in the case of general practitioners, other things being equal, I think that … describing them as the general practitioner with a history of consultations for matters other than the injuries sustained in the accident is enough to meet the necessary standard of lack of relevance and embarrassment.

[20] The Gibson decision, being a decision of a master, is not, strictly speaking, binding on me, but I do find its analysis helpful.  While I would not go so far as to say that in all cases the bare assertion that a doctor is a general practitioner who did not treat the injuries complained of as part of the action will justify disclosure on a Halliday format, I do think that it would raise concerns that a court must at least consider and address.  In this regard, I disagree with the third party’s submission that the Halliday procedure is restricted to circumstances, like those in Grewal, in which the nature of the practitioner’s speciality is on its face irrelevant to the issues in the litigation.

[21] Here, the learned master did not provide any analysis explaining his decision to order disclosure in Jones format.  While he is deemed to know the law and to have applied it correctly in the absence of some contrary indication, I think it was a clear error for him not to have identified that the same large number of medical visits which had made it likely that these records contained relevant evidence also sharply increased the risk of capturing irrelevant and embarrassing information during the process.  This seems to me to be the obvious corollary of his disclosure decision and I cannot infer that he addressed it and resolved it in a manner that justified Jones disclosure in the absence of any indication to that effect.

[22] Accordingly, I will allow the appeal to the extent of ordering that records of the doctors whom the plaintiff asserted did not treat him for any matters related to the accident that is the subject matter of this litigation will be disclosed in accordance with the procedure in Halliday.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.

$75,000 Non Pecuniary Damages Awarded for Chronic Soft Tissue Neck Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $156,000 in total damages as a result of damages and loss from a BC Car Crash.
In yesterday’s case (Szymanski v. Morin) the Plaintiff was involved in a rear end collision in 2004.  Liability (Fault) was admitted by the Defendants leaving the court to deal with the value of the Claim.
The Plaintiff suffered mild/moderate soft tissue injuries but due to the nature of his physical work (a hard-wood floor installer) his injury continued to be aggravated and symptomatic through trial some 5 years later.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Ker highlighted the following facts with respect to the accident related injuries:
[134] Upon a consideration of all of the evidence, I find that Mr. Szymanski’s complaint of continuing neck and trapezius pain was caused by the accident.  The fact that he suffered soft tissue injuries to his neck is not disputed.  The significance in this case is that the complaint continues.  I find that Mr. Szymanski continues to suffer neck and trapezius pain and that is because the accident and injuries occurred to a person with Mr. Szymanski’s particular occupation such that it has made it difficult for the injuries to fully resolve in the ordinary course.  As noted in the evidence of Dr. Tomaszewski, Dr. Hershler and Ms. Quastel, which I accept, Mr. Szymanski’s occupation as a hardwood floor installed has exacerbated the situation and made him more susceptible to suffering injury for a greater period of time than a normal person might have.  Mr. Szymanski has established that he has continuing problems with chronic neck pain and his continuing problems were caused by the defendants’ negligence.  He is entitled to be compensated for his injuries…

[142] I accept Mr. Szymanski’s evidence that he sustained a soft tissue injury to the left side of his neck as a result of the accident and that he still experiences pain in the left side of his neck that radiates into his upper left trapezius muscle area.  The injury can be described as mild to moderate in nature but has developed an element of chronic pain that continues to bother Mr. Szymanski.  The pain is most evident when Mr. Szymanski works.  His job as a hardwood floor installer is physically demanding although he has been able to find contracts that are less demanding than what he undertook prior to the accident.  This chronic neck pain still manifests itself some four years after the accident, albeit significantly reduced from what it was immediately after the accident and the two years following the accident.

[143] Mr. Szymanski is a stoic and determined person.  Despite the neck and upper left trapezius pain he has tried to remain physically active but is less active than he was prior to the accident.  He no longer goes for long hikes, electing shorter slower walks, he no longer canoes, he hunts less than he did prior to the accident, primarily by reducing the number of hours he goes out hunting.  His injuries have impacted on his ability to contribute to various household chores such as vacuuming and washing dishes, and he is not able to conduct the home renovations at the pace he had set before the accident.  He no longer socializes to the extent he used to prior to the accident because of the chronic pain and fatigue he experiences.  His plan of retiring and building and opening a bed and breakfast may well be compromised by the continuing pain he experiences and thus is a further component in the assessment of impairment and loss of his previous lifestyle.

[144] Taking into account all of these circumstances, the referenced authorities and the nature of Mr. Szymanski’s injuries, the fact that the injury of real consequence was to the left side of his neck, and the upper left trapezius muscles that lead to his left shoulder, the relatively enduring nature of this injury, the pain he has suffered and may continue to experience in the future, as well as the fact that he suffered some diminishment in lifestyle, I assess non-pecuniary damages in the amount of $75,000.

Massage Therapy and ICBC Part 7 Medical Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 60 Comments on Massage Therapy and ICBC Part 7 Medical Benefits

(UPDATE: November 29, 2011 – the below case was upheld today by the BC Court of Appeal.  Reasons can be found here)

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the scope of ICBC’s obligations under Part 7 of the Insurance (Vehicle) Regulation.  These benefits are commonly referred to as Part 7 Benefits (Click here for some background on these).
In today’s case (Raguin v. ICBC) the Plaintiff was insured with ICBC and incurred several hundred dollars in massage therapy expenses.  ICBC refused to pay for these and the Plaintiff sued.
At trial ICBC’s lawyer argued that “Massage therapy is not a ‘treatment’ contemplated under section 88 of the regulations“.
Mr. Justice McKinnon disagreed with ICBC’s position and called it ‘without merit‘.  The court went on to hold that “Section 88 is not a section that restricts Section 7 benefits to a prescribed list of treatments.  Rather it is a general section that simply sets out an obligation to provide treatments that are recommended by a physician.  The treatments that are set out in section 88 are merely a general list subject to expansion, as indeed various cases that have been cited have expanded…The doctor ‘recommended’ massage therapy, which in my view is sufficient to trigger an obligation to pay.”
Unless this case is overturned on appeal it is beneficial for BC Injury Victims to have clarity that Part 7 of the Regulations covers massage therapy expenses even though these are not specifically mentioned in the regulation.

ICBC Injury Claims, Disclosure Requirements and Credibility

Written by admin on . Posted in Civil Procedure, Uncategorized. 48 Comments on ICBC Injury Claims, Disclosure Requirements and Credibility


Litigants in the BC Supreme Court have to make pre-trial disclosure in a variety of ways.  Some of this compelled disclosure may reflect poorly on a party’s credibility but if the documents or evidence is otherwise producible it must be disclosed to the other side despite the potentially harmful effects on your case.  What about documents or facts that don’t relate to the lawsuit directly but do address a parties credibility?  Can these documents be forced to be disclosed?
The answer is usually no.  Credibility, as important as it is, is considered a ‘collateral issue‘ in litigation and matters relating solely to credibility are deemed irrelevant in terms of pre-trial disclosure.  Reasons for judgement were released today by the BC Supreme Court discussing this.
In today’s case (Bay v. Pasieka) the Plaintiff was involved in a 2005 intersection car crash in Kelowna, BC.  The Plaintiff sued the alleged at fault motorist.   In the pre-trial discovery process the Defendant stated he had no recollection of the accident.  In exploring why the Defendant had no recollection the Plaintiff’s lawyer asked him whether he might have been taking any medication at the time of the crash which may have affected his memory to which he replied “I don’t know if I took medication that would affect my memory“.
The Plaintiff’s lawyer brought a motion for the production of the Defendant’s MSP history along with clinical records of treating physicians who cared for the Defendant in the relevant time frame to test “the creditility of the defendant” and to provide “some explanation for why he has no recollection of the accident“.
Master Young ultimately dismissed the motion holding that the evidence on the application was not sufficient for production of the sought records.  Before reaching this conclusion Master Young made some useful comments with respect to sought disclosure in ICBC Injury Claims relating solely to issues of credibility.  Specifically she held as follows:
Credibility is a collateral issue, as stated in the decision of Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78 (S.C.), and that decision says that it is not a matter which can be examinable in discovery. The defendant quotes from the decision in Roberts v. Singh, 2006 BCSC 906, which confirms that principle and quotes several other decisions which I have reviewed..These records are only being demanded to challenge his credibility, which is not a relevant issue.
There is caselaw that suggests that matters relating solely to credibility may be produced when punitive damages are being claimed (see for example Rioux v. Smith; 1983, 43 BCLR 392) but otherwise it is important to note that credibility is a ‘collateral issue‘ and not relevant for the purposes of pre-trial disclosure.