Tag: Jackson v. Yusishen

ICBC Advance Payment Does Not Have "Any Bearing" on Costs Order

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, addressing whether an ICBC tort advance has any effect in a costs order following a trial.
In today’s case (Jackson v. Yusishen) the Plaintiff was injured in a 2009 collision.  Prior to trial the Plaintiff received a $5,000 advance from ICBC.  Although various offers were made during the course of the proceedings at the start of trial the Defendant had a formal settlement offer of $100,000 and the Plaintiff’s formal offer was for $2 million.
After a lengthy jury trial the Plaintiff’s claim was largely rejected and damages of $5,000 were assessed.  Mr. Justice Betton awarded the Plaintiff costs up to the time that ICBC made their formal offer and ordered that both parties bear their own costs thereafter.  In finding that the advance of damages had no bearing in the costs assessment the Court provided the following reasons:
[14]         The plaintiff had requested an advance and received a $5,000 advance on June 4, 2013. When the advance was provided, the attached letter contained the following:
…The advance is to be applied first towards any heads of damage which will attract pre-judgment court ordered interest.
..
[49]         I will comment briefly on the advance payment of $5,000. This was not an offer to settle in accordance with the formal requirements of Rule 9-1. It does have the practical effect of making the appropriate order here a dismissal of the plaintiff’s claim. I do not find that it has any bearing on my order as to costs in the circumstances here.
 

Coughing Rib Injury Case Not "Too Complex" For Jury Trial

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, addressing whether a unique causation issue in a personal injury claim was too complex for a jury.
In today’s case (Jackson v. Yusishen) the Plaintiff was rear-ended by the defendant’s truck in 2009.  The Plaintiff sustained some injuries and sued for damages.   Some 6 months following the crash the plaintiff “coughed and the pain in his chest and back suddenly increased in intensity“.  He was ultimately diagnosed with “one or two fractured ribs…hernias of the intercostal area and of the diaphragm“.  He had multiple surgeries to correct these complications that had not been successful.  The biggest issue for trial was for the jury to decide whether the ribs were compromised in the collision and whether the collision caused or contributed to the ultimate complications the Plaintiff was diagnosed with.
The Defendant elected trial by Jury.  The Plaintiff argued the matter was too complex for a jury to decide.  Mr. Justice Rogers disagreed and held that a jury could address this issue.  In upholding the jury election the Court provided the following reasons:
[23]         It is possible that the jury may find that the accident weakened the plaintiff’s ribs such that the later coughing episode caused them to fracture. In that event, the standard language of an Athey instruction will suffice to guide the jury’s deliberations. Again, juries are regularly instructed on similar Athey issues – this case would not present any greater complication on that issue than any other.
[24]         Once the jury has determined whether the accident caused rib fractures or a weakening of the ribs that later turned into fractures, the rest of the jury’s duties will be relatively straight forward. If their answer to that question is yes, then they will have to assess the degree to which the injuries have impaired the plaintiff’s function and award damages accordingly. For that task, they will have the assistance of expert reports of the type that are conventionally adduced in personal injury cases. Those reports include a functional capacity evaluation, a vocational assessment, a cost of future care report, and an economist’s assessment of the present value of various loss scenarios. Again, in serious personal injury cases, juries are routinely asked to consider such reports. There is nothing about the content of the reports in this case that suggest that a jury would not be able to conveniently consider their content and render a verdict accordingly.
[25]         If the jury’s answer to the causation question is no, then their task will become very nearly trivial.
[26]         Although there are a number of expert reports that will go into evidence in this case, the reality is that the jury will likely not be required to scour each and every word in each and every report. For example, the plaintiff’s economist’s reports may be useful to the jury should it wish to award future losses to the plaintiff, but it is unlikely that the jury will need to go beyond picking what appears to it to be the appropriate multiplier for a given loss and a given set of positive and negative contingencies.
[27]         In my opinion, the jury’s task of hearing, examining, and considering the evidence in this case will not exceed the bounds of convenience. The jury will be asked to conduct a scientific inquiry into what the radiographs could and did show of the plaintiff’s rib structure, but that will be a relatively narrow and focused inquiry. The jury will be guided by the opinions of qualified medical practitioners and by counsel’s submissions. It is not every contest of medical opinion that will disqualify a jury from trying a personal injury claim, and in my view, the scientific inquiry that the jury will make on this issue will be within its capacity.
[28]         Once the jury gets past the issue of causation, this case will become a relatively straightforward assessment of personal injury damages. The evidence on quantum issues is entirely conventional and is of the sort that juries are often asked to consider and assess. The jury may have to make some difficult decisions, but the path to those decisions will not, in my view, be so intricate or complex as to overwhelm the jury’s capacity to arrive at a just and proper judgment.
[29]         For these reasons, I have concluded that the plaintiff’s application to strike the jury notice must be dismissed.
 

Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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