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Tag: Lakhani v. Elliott

More on Rule 37B – The Conduct of the Parties as a Factor

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized.

Further to my numerous posts revieiwng BC Supreme Court cases interpreting and applying Rule 37B following an injury claims trial, reasons for judgement were released today dealing with a unique issue; in exercising discretion under the Rule can the Court consider the conduct of the successful litigant?
In today’s case (Lakhani v. Elliott) the Plaintiff was injured in a 2005 car crash.  Before trial the Plaintiff made a formal offer to settle her case under Rule 37B for $95,000 plus costs and disbursements.
While the Plaintiff did not obtain all the compensation she sought at trial she fared well enough to beat her formal offer.  Specifically, after an 11 day trial Mr. Justice Voith awarded the Plaintiff just over $105,000 in total damages (You can click here to read my post summarizing the trial findings).
Despite the Plaintiff’s relative success at trial all did not go smoothly.  Mr. Justice Voith made some damaging findings with respect to her credibility.  Some of the highlights of these findings were as follows:

[33]      The defendants asserted that Mrs. Lakhani’s credibility was suspect. I agree in significant measure. I believe there are a number of distinct factors that have caused me to question, in some cases reject, and in other cases to significantly discount her evidence. In the main, I find that Mrs. Lakhani has overstated her symptoms resulting from the Accident; downplayed the significance of her 2001 workplace injury; and has been untruthful regarding the Accident’s effect on her graduation from nursing school. I will discuss these concerns in turn…

[40]      I believe that Mrs. Lakhani has tended to considerably overstate the severity of the symptoms that she suffers from as a result of the Accident….

[46]      For the plaintiff to assert that she has routinely and consistently suffered from pain, from the date of the Accident to the trial, which approaches the worst pain possible is not tenable. For her to describe her pain in terms which would be comparable to that of patients who are heavily medicated to assist with their pain management or who are inextremis goes beyond mere subjectivity or imprecision. It is instead either so inaccurate a description as to be of no value or it is a description intended to overstate. In either case it is not a description that can be relied upon….

[51]      The second significant concern with the plaintiff’s evidence was a tendency to downplay the significance of her 2001 workplace injury or to suggest some improvement in her symptoms in relation to that injury prior to the Accident…

[54]      Indeed Mrs. Lakhani sought broadly to suggest that in late 2004 she reclaimed or reassumed control of her life. She said this was so with respect to spending time with her sister, with respect to gardening and even with respect to her household activities. This too is all inconsistent with the objective record of what she told others she could do, with the medical assessment that her condition had plateaued or with her admission that things had become “as good as they were going to get”…

[59]      Quite simply the overall picture which the plaintiff sought to paint with her evidence was one where the very significant “life altering changes” brought on by her low back injury occupied little or no space. This absence of balance in her evidence had the affect of considerably detracting from its weight.

[60]      A third concern with Mrs. Lakhani’s evidence arises from having testified that the Accident caused her to graduate two terms later than she otherwise would have. Specifically, Mrs. Lakhani said that the pain and difficulty associated with the Accident caused her to skip the May to August 2005, as well as the January to April 2007 academic terms. This is not credible on an objective basis…

[66]      Plaintiff’s counsel sought to persuade me that an eight month delay in Mrs. Lakhani’s graduation was a very modest component of the plaintiff’s claim and not one that would cause the plaintiff to be less than forthright. In my view, however, the focus of the plaintiff’s evidence was not designed to obtain the modest financial benefit that receiving her degree earlier would have generated, but rather to impress upon the court the ongoing severity of her injuries. Quite apart from her motivation, the documents I’ve referred to as well as the admissions she made in cross examination, simply do not accord with the evidence she first gave.

With this background at hand the Plaintiff brought an application for double costs under Rule 37B.  The Defendants opposed and argued that given the Plaintiff’s “failure to be forthright at trial” the Court should not exercise its discretion to award the Plaintiff double costs.  Mr. Justice Voith agreed and provided the following analysis:

0] While the dominant objective of Rule 37B, found under the heading “Offers of Settlement”, is likely to promote early or reasonable settlement, additional factors, and in particular the conduct or honesty of one of the parties, can be relevant in considering whether to make an order of double costs under 37B(5)(b). This is apparent from numerous sources…
[13] Second, both the permissive nature of Rule 37B(5), which establishes that the new rule does not purport to create any automatic double cost consequences, and the non-exhaustive list of factors in Rule 37B(6) acknowledge the flexibility inherent in Rule 37B and the prospect that the Rule is amenable to furthering legitimate policy objectives apart from settlement…

[15] It is important to emphasize that in this case there is no issue of depriving the plaintiff of the ordinary costs to which she is entitled or of any award of special costs being made against her. Instead, the only issue is whether she should be entitled to double costs in light of various findings that I made in my Reasons for Judgment.

[16] Having regard to the foregoing authorities, and the underlying rationale that drives them, I can see no principled reason why a lack of candour or probity on the part of a party who gives evidence at trial should not constitute an “other factor the court considers appropriate” under Rule 37B(6)(d) in any potential award of double costs. An award of double costs, or a refusal to award such costs, is one of the means available to a court of signalling to litigants the types of conduct or behaviour it considers as either worthy of promotion or, conversely, as worthy of rebuke…

[20]        The same considerations apply to a party whose evidence is found by a court to be dishonest or designed to exaggerate or inflate a claim. Such a party should understand the seriousness with which that conduct will be regarded. It should similarly understand the potential consequences of that conduct, including its relevance to an award of double costs that the party might otherwise be entitled to.

[21]        In making these comments I am mindful that there are a great many cases where a party’s evidence is not accepted by the court for a variety of reasons. In many cases a party’s best recollection may simply not accord with other objective evidence. A party’s candid evidence may not, in light of the expert evidence, be accepted. Indeed it is not remarkable or unusual for a party to place a somewhat positive slant on given events. The mere fact that a party’s evidence is not accepted by the court, without more, does not engage the considerations I have identified. There is nothing in the conduct of such a party that warrants any reproach or criticism. It is, instead, the natural result of all cases where competing memories or competing versions of given events require resolution…

[24] In this case, the specific findings I referred to go beyond the “normal trial process” and do extend to a finding that the plaintiff sought to mislead the court and to significantly exaggerate the claim being advanced. Such conduct is worthy of censure and, in the circumstances of this case, disentitles the plaintiff to the award of double costs that she seeks.

This case serves as an important reminder of the crucial role that Plaintiff credibility plays in injury litigation.
In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

More ICBC Injury Claims Updates – The Kelowna Road Edition

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 57 Comments on More ICBC Injury Claims Updates – The Kelowna Road Edition

I’m just finishing up another business trip to Kelowna BC and have been greeted by a heavy load of ICBC Injury Claims judgments released by the BC Supreme Court.  Given this volume (and being pressed for time working on the road) this Injury Claims update will be shorter on detail than usual.
4 cases worth noting were released today by the BC Supreme Court.  The first deals with the issue of fault and the others deal with damages (value of the the claims).
In the first case released today (Hynna v. Peck) the Plaintiff was injured in a car accident.  She was attempting to cross 10th Avenue, in Vancouver, BC when she was struck by a westbound vehicle near her driver’s side door.
The Plaintiff had a stop sign and was the ‘servient driver’.  The court found that the Plaintiff was careless when she left the stop sign as she tried to cross the intersection when it was not safe to do so.    Specifically the court found that the Plaintiff entered the intersection when the dominant on-coming driver posed an immediate hazard and the Plaintiff “either did not see him or saw him but failed to reasonably appreciate the threat of his approach”
The court also found that the Defendant was speeding.  The court concluded that he was at fault for this and in doing so made the following finding and analysis:

[84] I have found that Mr. Peck was speeding along West 10th at between 83.5 and 86 km/h as he approached the Intersection.  He was moving at that rapid pace when he first noticed the Hynna car stopped on Camosun Street.  The evidence demonstrates that but for Mr. Peck’s excessive speed of travel, he would have been able to take reasonable measures to avoid the accident and the accident would not then have occurred.  I also find fault with Mr. Peck for failing to keep a proper look-out.  He could not have maintained a proper look-out as he sped toward Ms. Hynna after taking the momentary second glance her way.  That is why he did not see her pull into the Intersection when he was 62 to 65 metres away.  The skid mark evidence, as interpreted by Mr. Brown, together with the testimony of Mr. Dales, establishes on balance that Mr. Peck was significantly closer to the Intersection when he finally noticed and reacted to Ms. Hynna coming into his path and slammed on his brakes.  To Mr. Peck’s mind, Ms. Hynna had suddenly appeared in front of him.  Yet the evidence shows that was not the case: she did not dart out in front of him at the last minute at a rapid rate of acceleration.  The accident here was not tantamount to a head-on collision as in Cooper.

[85] In Mr. Brown’s opinion, had Mr. Peck been doing the speed limit he could have braked to a stop in about 11.9 to 13.1 metres.  Adjusting for my finding that Mr. Peck was closer to the area of impact when Ms. Hynna entered into the Intersection than the distance estimated by Mr. Brown, I still find that, had he not been speeding and had been maintaining a proper look-out, he could have stopped in plenty of time to permit Ms. Hynna to complete her manoeuvre without mishap.

[86] I conclude that the conduct of each Mr. Peck and Ms. Hynna was negligent and combined to cause the accident.

Madam Justice Ballance apportioned 60% of the blame for this accident on the Defendant and 40% on the Plaintiff.  This case is worth reviewing in full for the court’s discussion of the law in these types of accidents.
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The second case released today by the BC Supreme Court (Lakhani v. Elliott) the issue of fault was admitted and the court had to deal with the quantum of damages.
In this case the Plaintiff was injured in a 2005 BC Car Crash.   In awarding just over $105,000 in total damages Mr. Justice Voith summarized the Plaintiff’s injuries and their effect on her life as follows:
88] In my view it is clear that Mrs. Lakhani did suffer from a series of injuries as a result of the Accident. Except for her lower back and left leg, she had never suffered from any of these difficulties prior to the Accident. There is no disagreement between the experts on the issue of causation in relation to these various injuries. While Mrs. Lakhani had experienced symptoms in her lower back and left leg these symptoms were temporarily aggravated as a result of the Accident….

[91] I find that a number of Mrs. Lakhani’s symptoms were fully resolved within one to six months of the Accident. Others have persisted, albeit it to differing degrees, to this date. While I do not accept that these symptoms have consistently been as severe as Mrs. Lakhani indicated, I do accept that they have caused her some pain and discomfort. A number of persons, including a former housekeeper, Ms. Kar, and Mrs. Lakhani’s co-worker Ms. Cousins, have given evidence about her present condition. These witnesses indicated that they have observed Mrs. Lakhani struggling with various tasks. Her husband also gave evidence about Mrs. Lakhani’s post-Accident condition. While his evidence (as with so much of the plaintiff’s case) seem to focus on Mrs. Lakhani’s limitations without any or adequate recognition about her pre-Accident condition, I do accept that the injuries associated with the Accident have increased Mrs. Lakhani’s difficulties. For example, I accept that she had headaches when she studied. I accept that sitting at a computer caused her additional difficulties. I accept that her exercise regime in the gym has changed somewhat so that she no longer exercises with light weights as she once did. I accept that she is required to ensure her workstations are properly set up to minimize difficulties with her neck and shoulder. I also accept that the difficulties Mrs. Lakhani has had in her neck, shoulder and upper back limits her ability to cope with her low back injury. A number of professional witnesses indicated that persons who have low back injuries can often adapt by undertaking more functions or tasks with their upper back and shoulders. In the case of Mrs. Lakhani, the ability to alleviate the strain or load on her low back in this manner has been obviated.

[92] It is also clear that Mrs. Lakhani has consistently sought different types of treatment to assist with her post-Accident condition. For a few months immediately after the Accident she obtained physiotherapy and massage treatments. In about April 2006 she began to see Dr. Khan regularly; she presently sees him every third week or so. Since December 2008 she has been getting cranial massage treatments. All of this is consistent with Mrs. Lakhani continuing to suffer with some of the after effects of the Accident.

[93] Mrs. Lakhani formerly enjoyed needlepoint and would periodically paint small ornaments, particularly at Christmas. She says she no longer enjoys these activities because they cause her some neck pain. I accept this evidence.

[94] As mentioned above, Mrs. Lakhani is a very avid gardener. She says the Accident has inhibited her ability to engage in this activity. I will return to this later when I deal with issues related to the cost of future care, but I find that Mrs. Lakhani’s present ability to garden is largely unchanged from that which she enjoyed prior to the Accident.

[95] I have said that Mrs. Lakhani described the sadness she felt in not being able to play with her daughter as she had hoped. I have no doubt that such limitations are very disheartening, but as I have indicated, I find that many of these limitations are a function of her pre-Accident condition. Apart from examples I have already given, Mrs. Lakhani described her inability to help her daughter learn to ride a bicycle. Such an activity, which requires running, bending and strength to balance the bicycle, would have all been extremely difficult for Mrs. Lakhani before the Accident. There are, however, some activities, such as carrying her child when she was an infant, which were likely rendered more difficult and painful as a result of the Accident.

[96] Mrs. Lakhani was a very avid reader prior to the Accident. She said she would often read for over an hour before she went to sleep. At present, she rarely reads more than 15 to 20 minutes. I accept that some of this is likely referable to the Accident. Much of it, however, seems to reflect another significant difficulty with the plaintiff’s case. I have described how carefully Mrs. Lakhani was required to balance her various commitments with her leisure time in order to protect her lower back. This leisure time was necessary to enable her to recuperate from various daily demands. Yet the fact is that Mrs. Lakhani has continued to add obligations and activities to her day-to-day life subsequent to the Accident.

Damages were awarded as follows:

Non-Pecuaniary Damages:   $45,000

Income Loss:  $8,771.97

Future Loss of Opportunity:  $30,000

Special Damages:  $12,045.96

Cost of Future Care:  $5,500

Loss of Houskeeeping Capacity:  $3,721

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The next case dealing with damages (Lidher v. Toews) involved a 2004 BC collision.

The Plaintiff testified that she suffered injuries affecting “her neck, shoulders, arms, back and head.“.   Madam Justice Smith found that the Plaintiff indeed was injured in this collision and awarded total damages just above $76,000 then reduced these by 10% for the Plaintiff’s ‘failure to mitigate‘.  Specifically the court found that the Plaintiff “did not do what she could reasonably have been expected to do  to keep herself from becoming deconditioned, and that some reduction of her award for failure to mitigate would be appropriate“

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $30,000 the court made the following key findings:

[78] I have concluded that the plaintiff has reacted more significantly to her injuries than someone else might have, and, in addition, that she has exaggerated her symptoms.  I note that the stresses and difficulties in her life may have made her more susceptible to pain, and may explain her reaction to her injuries.  I also take into account that she is not a sophisticated or highly educated woman, and that her communications with health care providers have often been through interpreters, except where the health care provider is Punjabi-speaking (Dr. Khunkhun and Dr. Johal are able to speak Punjabi).  There may well have been miscommunication as a result.

[79] The weight of the evidence satisfies me that the motor vehicle accident caused Ms. Lidher to experience pain and other symptoms from December 11, 2004 to the present.  Her symptoms may have been exacerbated by family stress, but to the extent that the family stress has caused her to experience the injuries more significantly than she otherwise would, it is an example of the principle that the defendant must take the plaintiff as she is found.  It is possible that family stress would have caused her to miss some work in any event, but I do not find this to be more than a slight possibility.

[80] The evidence as to whether Ms. Lidher will experience a full recovery is unclear.  However, both Dr. Hershler and Dr. Khunkhun expressed some optimism, particularly given the good results obtained by the Karp Rehabilitation program in 2008.

[81] On the balance of probabilities, I find that the plaintiff will likely experience further recovery, to the point that her symptoms will be minimal.  Her symptoms are already at a modest level.

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In the final personal injury case released today by the BC Supreme Court (Sanders v. Janze) the Plaintiff was injured in a 2002 car crash in Richmond, BC.  Fault was admitted and the trial focussed solely on quantum of damages.

The Plaintiff had suffered other injuries in the years before this collision and was still recovering from these at the time of this accident.

Mr. Justice Butler found that the Plaintiff suffered a neck injury and a back injury in this collision.  With respect to the neck he found as follows:

[67] The pre-existing degenerative changes in Ms. Sanders’ cervical spine made her more susceptible to injury.  She was still experiencing some pain and discomfort in her neck from the 2002 injuries, but it had improved and was not disabling.  The Accident aggravated the existing condition of her spine.  The nature and extent of her symptoms changed.  The pain and inability to function that she experienced after the Accident persisted and ultimately led to surgery in 2004.

[68] Dr. Connell’s evidence that there was no structural change in the cervical spine before and after the Accident based on the diagnostic imaging does not negate the opinion of Drs. Matishak and Watt that the Accident was an effective cause of the neck injuries that led to the surgery in 2004.  I accept Dr. Matishak’s opinion as the treating surgeon.  He was adamant that the Accident was a cause of the significant problems that Ms. Sanders experienced in her neck.  He was cross-examined extensively on the issue.  He did not waiver in his view.

With respect to the Plaintiff’s back injury the court found as follows:

[72] I have already found that Ms. Sanders’ low back was not symptomatic before the Accident.  She had experienced back pain from time to time since 1993, but after 1999 the low back was quiescent.  She worked at physically demanding jobs without experiencing low back pain.  In other words, a careful examination of Ms. Sanders’ pre-Accident condition establishes that Dr. Matishak’s assumption that her back condition was quiescent is correct….

[75] There can be no question that the Accident did cause Ms. Sanders’ back to become symptomatic.  She continued to experience pain from the date of the Accident onwards.  However, Mr. Janze also argues that Ms. Sanders’ absence of impairment on the SLR test in the months immediately after the Accident is objective evidence to show that the Accident did not affect her low back spinal structure.  Drs. Watt and Matishak were cross-examined on this issue.  Both maintained that this fact did not cause them to alter their opinions.  They both noted that there were symptoms of radiating leg pain shortly after the Accident.  Approximately six months after the Accident, Ms. Sanders’ SLR test revealed impairment on the right side….

[77] There is no other possible event or cause that could explain the development of the symptomology in this case.  The fact that the surgeries did not take place until 2007 does not mean that the Accident was not a cause of the injuries that ultimately led to those surgeries.  I have found that the symptoms and back pain were caused by the Accident.  Those symptoms persisted and became chronic.  The conservative treatment attempted did not provide relief.  Consequently, Ms. Sanders chose surgery.  The fact that three surgeries were required was a direct result of the condition of her spine after the Accident.  In summary, when the temporal connection is examined closely, it does establish that the Accident was a cause of the low back pain.

The court assessed the Plaintiff’s non-pecuniary damages at $150,000 but then reduced this award by 40% t “to take into account the measureable risk that Ms. Sanders’ pre-existing conditions of her spine would have detrimentally impacted Ms. Sanders in any event of the Accident”

This case is worth reviewing in full for anyone interested in the law in BC relating to “pre-existing conditions” and the “crumbling skull” defence which is often raised in ICBC Injury Claims.

Whew…Now to catch my plane.