Tag: Madam Justice Adair

‘Inappropriately Dismissive” and “Close-Minded” Defense Doctor Opinion Judicially Criticized

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today finding a defence doctor’s opinion to be “of little value” in an injury claim.

In today’s case (Lambert v. Tiwana) the plaintiff was involved in two collisions and claimed damages.  The Defendants admitted fault in both claims.  The Plaintiff suffered a myofascial shoulder injury with persistent symptoms.  In the course of the lawsuit the Defendants had the Plaintiff examined by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries.  In finding the ‘close-minded‘ and ‘inappropriately dismissive‘ opinion of little value Madam Justice Adair provided the following reasons:

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Speeding Bus Driver Found Faultless for Collision With Moose

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a negligence lawsuit against a bus driver who collided with a moose.

In today’s case (Tran v. Anderson) the Defendant was operating a Greyhound bus on June 22, 2011.  He was travelling above the posted speed limit.  A moose appeared “suddenly out of the foliage to the right of the highway, about 20 feet in front of the bus“.  The Court found that the Defendant had no time to react in these circumstances and even if was travelling at the posted speed limit the result would have been the same.

In dismissing the negligence claim Madam Justice Adair provided the following reasons:

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$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision.

In today’s case (Rabiei v. Oster) the Plaintiff was involved in a 2016 collision.  The Defendants accepted fault.  The crash resulted in various soft tissue injuries resulting in chronic pain in the plaintiff’s neck, back and shoulder.  These injuries resulted in some impairment in the Plaintiff’s ability to work and also impacted activities outside work.  Full recovery was not expected.  In assessing non-pecuniary damages at $70, 000 Madam Justice Adair provided the following reasons:

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$55,000 Non-Pecuniary Assessment for Chronic But Not Disabling Neck and Shoulder Injury

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Young v. Shao) the Plaintiff was involved in a 2013 rear-end collision.  The Defendant admitted fault.  The crash resulted in chronic but non-disabling soft tissue injuries with a poor prognosis for full recovery.  In assessing non-pecuniary damages at $55,000 Madam Justice Adair provided the following reasons:

[81]        Based on my findings above, Ms. Young will continue to have chronic pain symptoms, particularly in her neck and shoulder. As a result of the injuries she sustained, her ability to participate in her most favourite past-time – dancing – was curtailed altogether for several months. When Ms. Young’s injuries had sufficiently healed to allow her to resume dancing, she could not engage in the activity to the same extent as before the accident. Dancing has always been a very important part of Ms. Young’s lifestyle. The effects of her injuries have also made Ms. Young’s ability to work – something else that is important to her and gives meaning to her life – more difficult. Although she has never missed work, she has had to work with pain, and will have to do so indefinitely.

[82]        On the other hand, I had no evidence that, as a result of the injuries, there was any impairment in Ms. Young’s family or social relationships. Indeed, only Ms. Young testified about how her life was affected. I did not hear from any friends, family members or co-workers. This was a significant feature of at least two of the cases cited by Mr. Vondette, which is not present here.

[83]        In view of my findings above, and taking into account the factors mentioned in Stapley (including Ms. Young’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $55,000.

Negligent Ski Resort Saved From Liability Based on Waiver

Big White Waiver
Reasons for judgement were released today by the BC Supreme Court dismissing a lawsuit against a negligent ski resort based on a waiver patrons must agree to when using their facilities.
In today’s case (Fillingham v. Big White Ski Resort Limited) the Plaintiff was skiing on a short cut at the end of a ski run named ‘highway 33’  to a parking lot which was, at the time, open for use for skiers.  Shortly prior to this a snowplow came through exposing users of the path to a 10 foot drop to the parking lot.  The Plaintiff fell, was injured and sued for damages.
The Court found that the ski resort was negligent with Madam Justice Adair noting as follows

…as of Noon on March 4, 2013, when Mr. Fillingham was coming down Highway 33 , the rope line at the short cut was still open.  However, the path had been removed, thereby creating a hazard if the short cut was used, and the open rope line failed to mark or warn of that hazard.

[39]        I find further that, in not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, BW Limited failed to take reasonable care and was negligent.

Despite the finding of negligence the Court went on to dismiss the lawsyuit noting a broad worded waiver covered this situation.  In reaching this conclusion the court provided the following reasons:

[51]        On the other hand, when I apply the analytical framework described by Binnie J. to the Exclusion, in my view, the intention is clear:  it is to exclude liability on the part of the Ski Area Operator to the Ticket Holder for “all risk of personal injury . . . resulting from any cause whatsoever” [underlining added].  “Any cause whatsoever” specifically includes, but is not limited to, negligence on the part of the Ski Area Operator.  Mr. Fillingham, as I have found, was very familiar with this language.  He had seen it many times, and carried on his activities on the basis that he was assuming “all risk of personal injury,” including, without limitation, risk of personal injury caused by the negligence of BW Limited.  That is what Mr. Fillingham did at Big White on March 4, 2013.

[52]        Mr. Fillingham, based on his evidence, knew that some of the time, the short cut was roped off, and some of the time it was not.  The essence of his complaint in this action is that, as of about Noon on March 4, BW Limited failed to adequately mark – by closing the rope line – a hazard it had created, and was negligent in doing so.  I have found that BW Limited was negligent.  However, in my view, what occurred is not so extraordinary or unique that it could be said the parties did not intend for it to be covered by the Exclusion.

[54]        Mr. Berezowskyj submitted that, if the Exclusion were found to be valid and broad enough to encompass Mr. Fillingham’s claim, then there are strong public policy reasons for preventing a recreational operator from relying on a ticket waiver to avoid liability in circumstances where it actively creates the hazard from which its guests were not properly protected, and were in fact invited to court.  However, in my opinion, this is not a case where an overriding public policy (evidence of which was thin at best) outweighs the case in favour of enforcement of the Exclusion.

$50,000 Non-Pecuniary Assessment for "Lingering" Soft Tissue Injury

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court,  Vancouver Registry, valuing a claim dealing with a ‘lingering‘ neck and shoulder soft tissue injury.
In today’s case (Lal v. Le) the Plaintiff was involved in a 2011 rear-end collision that the Defendant accepted blame for.  The Plaintiff suffered various soft tissue injuries the most serious of which involved his neck and shoulder and symptoms lingered to the time of trial.  Some long term symptoms were anticipated.  In assessing non-pecuniary damages at $50,000 Madam Justice Adair provided the following reasons:

[102]     Accordingly, I find that, as a result of the accident, Mr. Lal sustained soft tissue injuries to his neck, back, chest, elbow, leg and shin areas.  He also sustained ulnar nerve irritation symptoms, and experienced headaches as a result of his injuries.  Most of these injuries resolved over a few months.  However, the most serious injuries, a moderate soft tissue injury to his neck, and a moderate muscular strain in his right middle and lower back, did not.  As of April 2014, there continued to be objective signs of injury.  I find that, by April 2014, Mr. Lal had improved to the point that he was pain-free at times, although, with heavier and awkward work, he experienced symptoms in his neck and back, and also occasional headaches.  I find that these symptoms resulted from the injuries he suffered in the accident.  By October 2015, Mr. Lal’s mid-back injury had resolved.  However, I find that, as of trial, Mr. Lal continued to experience symptoms as a result of the injuries suffered in the accident, particularly symptoms in his neck.  He is likely to have some lingering neck and shoulder pain long-term, although the prognosis is more favourable that his back pain will fully resolve over the next year.

[103]     I find further that, as a result of the injuries Mr. Lal suffered in the accident, there is a risk that he will be unable long-term to work as a boilermaker, although he should be able to work full-time as an armored car driver.  In addition, I find that, as a result of the injuries suffered in the accident, Mr. Lal will be at increased risk of a work-related neck or back injury.  Given the physical nature of his employment, this is a real risk…

[110]     Considering Mr. Lal’s age and the other factors described above, and the cases cited to me, I conclude that an appropriate award for non-pecuniary damages is $50,000.

Court Orders Part 7 Action Discovery Transcripts Disclosable in Tort Action

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, allowing a Defendant in a tort action to gain access to a Plaintiff’s examination for discovery transcript from a related Part 7 action.
In the recent case (Gill v. Gill) the Plaintiff was injured in a 2009 collision and sued for damages.  She also sued ICBC for allegedly denying benefits owing under her own policy of insurance.  ICBC defended both actions but appointed separate lawyers to do so.  The Plaintiff was examined for discovery in both lawsuits.  Subsequent to this the Defendant in the tort action applied for a copy of the transcript from the Part 7 action discovery.  Madam Justice Adair held it was appropriate to lift the implied undertaking of confidentiality and ordered disclosure.  In doing so the Court provided the following reasons:
[20]         Ms. Simon is correct that the underlying causes of action in the Tort Action and the Part 7 Action are different.  In that sense, the issues are different.  She also points out, correctly, that the two actions cannot be consolidated for trial or heard together by virtue of s. 83(4) of the Insurance (Vehicle) Act, and Part 7 benefits are not to be referred to at the trial of the Tort Action.  Moreover, a determination with respect to entitlement to Part 7 benefits does not bind the court in the Tort Action.
[21]         However, there are, without any doubt, overlapping factual issues in the two actions, including:
(a)      was Ms. Gill injured in the accident and, if so, what injuries did she sustain as a result;
(b)      was Ms. Gill unable to work as a result of the injuries sustained in the accident; and
(c)      has Ms. Gill incurred expenses in relation to medical and rehabilitative treatment as a result of injuries sustained in the accident.
[22]         Although the causes of action are different, key factual issues will be the same in both actions.  Ms. Gill must establish injury, causation and loss arising out of the same event, namely, the accident on April 5, 2009.  If, in stating that “the issues are sufficiently different and discrete,” the Master was referring to factual issues in each action, then, in my opinion, the Master was clearly wrong, because many factual issues in the two actions are obviously very closely related, if not identical.
[23]         Ms. Gill, as the plaintiff in both actions, can be compelled to testify in both the Tort Action and the Part 7 Action about the same factual issues, so there is no privacy issue that needs to be protected.
[24]         On the other hand, there is a compelling public interest in getting at the truth.  As Mr. Justice Hood observed in Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 62 B.C.L.R. (3d) 366 (S.C.), 1998 CanLII 5684, at paragraph 22:
[I]t is the possibility of there being inconsistent statements which triggers the special reason for the production of the discovery transcript.  The test over the years . . . has never been higher than “lets see what the witness had to say under oath before with regard to these or related matters”.  What [the witness] has said may be relevant to the evidence [the witness] gives in the second action.
[25]         Accordingly, here, the defendant has demonstrated the existence of a public interest of greater weight than the values (privacy, and the efficient conduct of litigation) the implied undertaking is designed to protect…
[31]         In summary, the defendant’s appeal is allowed and the defendant’s application to use the discovery transcript from the Part 7 Action in this action is granted.

Inadequate Notice of Application Criticized By the BC Supreme Court

Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed. 
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.

BC Apology Act Keeps Roadside Admission Out of Evidence

Section 2 of BC’s Apology Act holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”  Although this law has existed for several years it has received little judicial attention.  In one of the first cases that I’m aware of addressing this section, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, relying on this statute.
In this week’s case (Dupre v. Patterson) the parties were involved in a bike/vehicle collision.  Fault was disputed.  After the collision the cyclist apparently apologized to the motorist.  Madam Justice Adair found the motorist solely at fault for the crash and before reaching this conclusion had the following brief comments about the application of the apology act to the cyclist’s roadside statements:
[40]         Defence counsel pointed to some statements made by Ms. Dupre to Ms. Patterson after the accident, when Ms. Dupre apologized.  In view of my conclusion that Ms. Patterson’s negligence caused the accident, I will address this point only very briefly.
[41]         First, it was unclear, based on the submissions, how I was being asked to use Ms. Dupre’s statements and whether they were admissible for the purpose for which they were being tendered.  Secondly, it is clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission or acknowledgment of fault or liability:  see the Apology Act, S.B.C. 2006, c. 19, s. 2.
[42]          Ms. Dupre explained that when she spoke to Ms. Patterson after the accident, she was upset and in considerable pain from falling and injuring her shoulder, and she felt embarrassed by the attention the accident had caused.  She did not remember saying anything about having over-extended or pushed herself too far on the bike ride.  Roadside admissions at accident scenes are unreliable, since people tend to be shaken and disorganized.  This describes Ms. Dupre’s situation.  Her statements do not affect my conclusion that Ms. Patterson’s negligence caused the accident.

Plaintiff's "Strong and Stubborn" Evidence Undermines Traumatic Brain Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing Plaintiff reliability in the context of an alleged traumatic brain injury claim.
In this week’s case (Harris v. Xu) the Plaintiff sustained various injured in a 2008 collision.  The Defendant admitted fault but disputed the nature and severity of the Plaintiff’s claimed injuries.  One of the injuries the Plaintiff allegedly sustained was a closed head injury.  Madam Justice Adair rejected this aspect of the Plaintiff’s claim noting some difficulties with the Plaintiff’s evidence regarding her injuries.  In dismissing the brain injury claim the Court provided the following reasons:
[83]         I do not doubt Ms. Harris’s honesty.  However, in giving her evidence, Ms. Harris demonstrated a strong and stubborn tendency to attribute almost every problem and every difficulty in her life to the accident.  In my view, this dictated caution before accepting Ms. Harris’s version of events, because her version is coloured by Ms. Harris’s firm belief that the accident – and the accident alone – is responsible for her current circumstances.  I have concluded that Ms. Harris is deeply frustrated by those circumstances and, in her own mind, is trying to impose some logic on past events.  This approach to her life is consistent with how her long-time friend Ms. Baird described Ms. Harris’s personality.  But what I needed from Ms. Harris were the facts, not Ms. Harris’s reconstruction of, and her conclusions about, what she believes happened, based on what, in hindsight, she now thinks makes sense.
[84]         The question of whether Ms. Harris suffered a closed head injury in the accident illustrates the problem.  At trial, Ms. Harris insisted that she was “knocked out cold.”  She gave this evidence, using those words, several times.  She communicated this to Dr. McCloskey when she saw him for the first time on April 17, 2008.  She later reported to Dr. McCloskey that she had been unconscious for minutes.  This was then further particularized as five minutes.  She gave a similar history to Dr. Coghlan, and it is the basis for his opinion concerning a closed head injury.  
[85]         However, there is no independent evidence to corroborate what Ms. Harris firmly believes.  If Ms. Harris was in fact “knocked out cold,” I do not know how Ms. Harris could possibly know that it was for five minutes.  Her memory (based on what she told Dr. McCloskey) seems to become more exaggerated with the passage of time.
[86]         At trial, Ms. Harris very strongly and firmly rejected what appeared in the Royal Columbian Hospital emergency clinical record, that she had reported no loss of consciousness.  However, in my view, her detailed evidence concerning events at the accident scene and of her activities after leaving the hospital (collecting luggage, renting a car, and so on) on the day of the accident, are inconsistent with her having sustained any significant head injury or concussion in the accident.  Ms. Harris’s activities are consistent with her accepting what she says she was told at the hospital – that she was “good to go” – and (apart from her painful ribs) agreeing with it.  Ms. Harris did not tell Dr. McCloskey about what she did after the accident, or that she drove with her mother back to Kelowna the following day.  As a result, he did not have all of the facts when he made his assessment concerning this particular injury.  Dr. Coghlan’s opinion concerning a closed head injury is based on Ms. Harris’s history of “significant post-traumatic amnesia,” but he did not have all of the facts either.  I cannot place much weight on either opinion on this point.  There might be an explanation for why Ms. Harris was able to carry on the way she did after the accident and the following day, despite sustaining a closed head injury or concussion.  But, because neither Dr. McCloskey nor Dr. Coghlan had all the facts, neither of them was in a position to provide one to me…
[100]     I am not persuaded that Ms. Harris suffered a mild closed head injury in the accident.  In my view, the evidence in this respect is too equivocal for me to reach a conclusion that Ms. Harris has proved, on a balance of probabilities, she suffered such an injury in the accident.  Even if she did, I accept Dr. Coghlan’s opinion that whatever happened will not result in any long-term problems. 

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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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