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Tag: Madam Justice Gray

7 Hour Examination For Discovery Cap Does Not Permit Discovery Splitting

Important reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further clarifying the examination for discovery limit in the new Rules of Court.  In short the Court held that notwithstanding the time limit, generally only one examination for discovery is permitted.
In today’s case (Humphrey v. McDonald) the Plaintiff alleged injury following a collision.  In the course of the lawsuit the Plaintiff attended an examination for discovery.  It did not exceed the 7 hour cap set out in Rule 7-2(2).  Defence counsel brought an application seeking further discovery.  The Plaintiff opposed.  Madam Justice Gray dismissed the application finding that generally only one discovery is permitted.  The Court provided the following useful reasons:

[8] Defence counsel responds that it is implied that examinations should not be scheduled if it was abusive, but apart from that, a party can schedule multiple examinations for up to seven hours in total.

[9] In my view, the use of the plural “examinations for discovery” has to be read in the context of the entire sub-rule. It makes reference to examinations under other sub-rules, which relate to re-examination in subsection (17), in subsection (22) to informing himself or herself and it being adjourned for that purpose, and subsection (24) continuing an examination for discovery following receiving a letter.

[10] In my view, the sub-rule does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.

[11] I do not accept the interpretation of the sub-rule advanced by defence counsel. Since defence counsel has effectively conceded that it has had one examination for discovery of the plaintiff, the defence application to have a further examination for discovery of the plaintiff is dismissed.

$50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.
In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision.  She was 61 years old at the time.   Fault for the crash was admitted by the opposing motorist.  The trial focused on the quantum of damages (value of the claim).
Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition.  In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:

[132] As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

[133] As a result of the accident, Ms. Iwanik also suffered an injury to her left knee, which caused patellofemoral pain syndrome. It may have caused other problems in her knee, but the evidence at trial did not establish anything further. Although there is no record of Ms. Iwanik reporting the knee pain to treatment providers until August, 2008, I accept her evidence that she was initially more focussed on her other pain, and thought that the knee pain would resolve.

[134] I accept Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor compression fracture of her T12 vertebra, and that she suffered a minor head injury with a probable minor concussion which has resolved. However, both of those injuries resolved so quickly that they do not affect the assessment of damages in this case.

[135] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to work at a physically demanding job, and is not capable of working in a 7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which can accommodate her abilities. However, the job is not as well-paid as her work as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to engage in hour-long walks, or to carry heavy items such as laundry and groceries, or to garden for more than 20 minutes at a time in an elevated garden bed. She is no longer able to contribute to her family and community to the extent she previously did….

[142] In all the circumstances, an appropriate award is $50,000.

More on BC Sex Abuse Civil Claims; Consent and School Board Liability

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.
While today’s case is likely to receive media attention due to its sexual theme, it is worth discussing more so because it highlights two important topics that sometimes arise in sexual abuse civil prosecutions; consent and vicarious liability.
In today’s case (AB v. CD) the Plaintiff had several sexual encounters with her grade 12 English teacher.   Following this relationship she sued him for damages and the school board claiming they were vicariously liable for the harm caused by the relationship.  The claim against the teacher was successful but the claim against the school board was dismissed.
The nature of the sexual encounters are summarized at paragraphs 28-52 of the reasons for judgement.  There is no need to repeat them here.  The Plaintiff agreed that “she had consented to…the touching incidents“.   Despite this admission, however, people in authority cannot have consensual sexual contact with people under their authority who are under 18 years of age as this is contrary to section 150.1 of Canada’s Criminal Code.
The school board’s lawyer argued that despite this prohibition, “consent remains a defence in a civil action for sexual assault“.  Madam Justice Gray soundly rejected this argument finding as follows:
[102] The Criminal Code provisions recognize that young people are inherently vulnerable to persons in positions of authority or trust.  While such young people may think that they are making a free choice to engage in a relationship with a person in authority, the very nature of the relationship precludes a free choice.
[103]  Like Stromberg-Stein J., I conclude that it would introduce an odd and problematic inconsistency in the law if a young person were considered legally incapable of consenting to sexual activity for the purposes of the criminal law, but were capable of giving such consent in a related civil action.
[104]  The public policy set out in the Criminal Code has the effect that a young person under the age of 18 cannot consent to sexual contact with a person in authority, as a matter of law, whether the applicable proceedings are criminal or civil.
[105]  As a result, CD is liable to AB for any damages she suffered as a consequence of the sexual battery.
(on a related note, click here to read a BC Court of Appeal decision released this week upholding a criminal conviction of an individual who failed to let his partners know he was HIV positive finding this omission was a ‘fraudulent misrepresentation’ which overrides otherwise consensual sexual contact)
The next issue that was noteworthy was the Court’s discussion of vicarious liability.  As previously discussed, the law sometimes holds an employer responsible for the deeds of an employee even though the employer did not act negligently.  The law of the vicarious liability of School Boards for the sexual battery by teachers is still developing in Canada and there are relatively few judgements addressing this topic.
Madam Justice Gray found that the School Board should not be vicariously liable on the narrow facts of this case and in doing so provided a useful discussion of applicable legal principles at paragraphs 131-155 of the reasons for judgement and applied the Bazley principles to the facts of the case at paragraph 157.

More on the Affidavit Evidence Prohibition At TMC's and CPC's

Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

Court Ordered Defence Medical Exams and the Right to Take Notes

It is not uncommon for discrepancies to arise about the exact details of an appointment following Court ordered medical exams.  These exams can last from several minutes, to several hours, or even (in the case of Functional Capacity and Neuropsychological Exams) to several days.  If a discrepencey arises as to what was said by the Plaintiff a Trial Judge can face a he-said she-said situation.  This can lead to serious disputes because the outcome of a personal injury trial can turn largely on a Plaintiff’s reliability and consistency.
When such a dispute arises the examining physician often has access to his or her notes detailing the examination.  This can sometimes work to the doctor’s advantage when a Court is asked to decide what was actually said.   To remedy this can a Plaintiff take their own notes while attending an independent medical exam?  Reasons for judgement were recently published on the BC Supreme Court website addressing this issue..
In today’s case (Makowsky v. Jawandha) the Plaintiff was involved in two separate motor vehicle collisions. He alleged injury including brain damage and memory problems.  In the course of the lawsuit the Plaintiff was ordered to attend an independent medical exam with a psychiatrist.   Given the Plaintiff’s poor memory the Court further ordered that “someone invited by the plaintiff could observe the examination“.
The Plaintiff attended the exam with a friend.  During the exam the friend took extensive notes detailing the discussion between the Plaintiff and the Physician.  The Physician claimed this was distracting and put an end to the exam believing the extensive note-taking violated the general BC prohibition on recoding Court ordered medical exams.  The parties put the matter before the Court.
Ultimately the Court held that the Plaintiff’s observer could take notes so long as doing so did not interfere with the examination.  Madam Justice Gray provided the following useful reasons:

[15] There is a right, in my view, for the observer to take notes, but not in a manner that slows or interferes with the examination.  For example, the observer cannot ask someone to pause in what they are saying, or say, “Just a minute, I’m taking a note,” or make noise or gesture in a way that creates a distraction. …

[17] The examination can proceed on the basis that the doctor agrees that there can be an observer present and that observer can take notes, but on the basis that the observer will take notes quietly and out of view of the doctor and patient.

I should point out that although this decision was recently published it was decided in 2008 under the former BC Supreme Court Rules.  There is, however, no reason that I’m aware of to conclude that the Court’s reasoning would not apply to the current Rules.

BC Civil Sex Abuse Claims and Party Anonymity: Protecting the Plaintiff by Protecting the Defendant

Lawsuits are public matters.  Generally anyone is free to go to a Court Registry and obtain the names of parties to lawsuits and look at the formal issues of their claims.  This ‘open-court’ principle is fundamental in our Democracy and applies not only to criminal cases but also to civil cases including those dealing with claims for damages for sexual abuse.
It is understandably difficult for Plaintiffs to bring lawsuits dealing with the impact of sexual abuse in the best of circumstances and the open-court principle can serve as an unwelcome discouragement.  Accordingly BC Courts routinely make orders under the Court’s “inherent jurisdiction” to permit plaintiffs to identify themselves by their initials to protect their identity when dealing with sensitive lawsuits.
Sometimes, however, identifying a plaintiff by initials is not enough to protect their identity.  When this is the case the Court can go further to ensure a fair balance is struck between our open court system and the lack of deterrence of Plaintiffs seeking access to justice.  This balance was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (A.B v. C.D.) the Plaintiff sued a former high school teacher alleging that he sexually exploited, assaulted and battered her.  The Plaintiff also sued the school board arguing that they were ‘vicariously liable‘ for the misdeeds of the teacher.
In the course of the claim the Plaintiff was allowed to refer to herself by the initials AB.  The Defendants brought a motion seeking that they also be allowed to refer to themselves by initials.  The Vancouver Sun, wishing to fully report on the story, intervened and opposed the motion.  Madam Justice Gray ultimately granted the motion.  The reason for doing so was not to protect the defendants but rather to more meaningfully protect the identity of the Plaintiff.
The Court set out a lengthy summary of recent cases discussing the varying principles at stake.  From there Madam Justice Gray provided the following short and useful reasoning in allowing the initials order:

[81]        If the former teacher’s name is published in this case, it could lead members of the public, particularly people who were students and teachers at the plaintiff’s former school, to identify the complainant as the person involved in the criminal proceedings and these related civil proceedings. As a result, the September 27, 2010 ban shall be clarified to provide for restraint on the publication of the former teacher’s name.

[82]        It may seem odd that the former teacher will be treated better than others convicted of sexual offences if his name and identifying information is suppressed. However, this is simply the result of the publication ban and the circumstances. For example, where an accused person has a family relationship to an accused, it is routine to avoid publication of the name of the accused, because it could lead to identification of the complainant. This does not suggest that sexual offenders who prey on family members deserve better treatment, but simply reflects the inevitable result of protecting the complainant’s identity…

[84]        Schools are sufficiently small communities that a few facts can readily identify a former student. Here, the evidence shows that two teachers from the plaintiff’s former school have recently been accused of sexual misconduct with a student. That is such a small number of teachers that publication of the name of the school is likely to lead to identification of the plaintiff, particularly in combination with other details relevant to the plaintiff’s claim, such as her career.

[85]        In this case, a ban on publication of the name of the plaintiff’s former school is required for compliance with the September 27, 2010 ban on publication of information that would tend to identify the plaintiff…

[86]        The evidence shows that there are several high schools operated by the defendant school district. The community served by the defendant school district is a relatively small community. The only evidence of alleged or proven sexual misconduct by teachers in the defendant school district was of the two teachers who formerly taught at the plaintiff’s former high school.

[87]        In the circumstances of this case, publication of the name of the school board is likely to lead to identification of the plaintiff. As a result, the order must be clarified to prohibit publication of that information.

$75,000 Non-Pecuniary Damages Assessment For Scapulo-Thoracic Junction Soft Tissue Injury

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for a chronic and partially disabling soft tissue injury.
In today’s case (Knight v. Belton) the Plaintiff was injured in a 2008 rear-end collision.  The rear motorist admitted fault for the crash.  The Plaintiff suffered various injuries the most serious of which was a Grade 2 strain at her scapulo-thoracic junction.  Injuries at this level are notoriously difficult to treat.  While the Court heard competing evidence about whether the injury would recover Madam Justice Gray accepted that it would not and that the Plaintiff would likely experience chronic pain on a permanent basis as a result.
The Court awarded the Plaintiff damages at  just over $480,000 including $75,000 for the Plaintiff’s non-pecuniary damages.  In arriving at this figure Madam Justice Gray provided the following reasons:

[65]         Non-pecuniary damages are damages to recognize losses that have not required an outlay of money or have not involved losing payments. The purpose is to provide solace to Ms. Knight for such things as pain, suffering, disability, inconvenience, and loss of enjoyment of life. One purpose of such damages is to substitute other amenities for those Ms. Knight has lost, not to compensate her for loss of something with a monetary value. The award addresses losses both up to the trial date and which she will suffer in the future…

[67]         Ms. Knight was and is an engaging, enthusiastic, hard-working, and practical woman. She loves dental hygiene. She will not be able to practice it full time, and may have to give up clinical practice altogether.

[68]         Ms. Knight suffered several months of headaches, vertigo, and neck pain. She suffered significant right shoulder pain for about a year. She has on-going chronic mid-back pain and periodic right shoulder pain.

[69]         Ms. Knight is chronically in pain, and as a result, is not as energetic as she was before the accident. She is no longer able to enjoy rough physical play with her children. She is no longer able to enjoy outdoor activities that she previously enjoyed, like running, hiking, boating, skiing, and bicycling. She was unable to contribute as much as she wanted to building the family home. The accident has significantly diminished the quality of her life.

[70]         Ms. Knight referred to these cases: Cleeve v. Gregerson, 2007 BCSC 1112; Gray v. Fraser Health Authority, 2009 BCSC 269; Poirier v. Aubrey, 2010 BCCA 226, 4 B.C.L.R. (5th) 173; and Paller v. Paller , 2004 BCSC 997.

[71]         The defence referred to these cases: Rorison v. Dornan, [1993] B.C.J. No. 752 (S.C.); Letourneau v. Min, 2001 BCSC 1519; Amberiadis v. Groves, 2005 BCSC 1270; Sharpe v. Tidey, 2009 BCSC 948; Ragneborg v. Giesbrecht, 2009 BCSC 110; Sylte v. Rodriguez, 2010 BCSC 207; Henri v. Seo, 2009 BCSC 76; Brock v. King, 2009 BCSC 1179; Anderson v. Merritt (City), 2006 BCSC 90; and Larlee v. Shier, 2008 BCSC 1610.

[72]         I also considered Cathro v. Davis, 2008 BCSC 1645.

[73]         No two cases are alike. Ms. Knight is entitled to damages for pain and suffering in the amount of $75,000.

More on Non-Pecuniary Damages in BC Civil Sexual Abuse Claims

As I previously posted, in British Columbia there is no ‘cap’ on non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) when a victim successfully sues for harm caused as a result of sexual abuse.
So what compensation is a victim of abuse entitled to for non-pecuniary loss?  Recently a case was released by the BC Supreme Court, Victoria Registry, discussing this area of the law.  In this case (CCB v. IB) the Plaintiff succeeded in a civil suit for damages as a result of sexual abuse.  The trial focused of quantum of damages.
The Defendant was the Plaintiff’s natural father.  The abuse lasted for about 5 years when the Plaintiff was aged 5-9.  The father was criminally convicted and served time in prison.  The Plaintiff sued and was awarded close to $600,000 in total damages including $250,000 for her non-pecuniary loss.
One factor that is focused on in these claims is the severity and duration of the abuse.  I won’t repeat the facts here but the nature of the absue is set out at paragraph 8 of the reasons for judgement.    The plaintiff suffered harm as a result of the abuse.  She was, however, described as ‘resourceful‘ and ‘resilient‘ and had ‘a good prognosis for recovery from many of the effects of her traumatic, parentified and neglectful early life experiences with her father‘.
Madam Justice Gray made the following findings with respect to the Plaintiff’s injuries and prognosis:

[51]           I accept the opinions of Drs. Mills and Pullyblank described above.  In summary, I find that the defendant’s abuse of the plaintiff has caused her the following:

(a)      Generalized Anxiety Disorder, including additional features of trauma (including nightmares about the abuse and heightened trauma), phobia, and obsessive-compulsiveness/perfectionism;

(b)      depression and intrusive thoughts about the abuse;

(c)        lack of trust in others and lowered self-esteem;

(d)      educational underachievement, particularly in reading and math, which has so far resulted in a one to two year delay in her educational progression and may result in an inability to meet the potential she would have had without the abuse.

[52]           The plaintiff is described as resilient, and with proper assistance, her prognosis for increasing her education is good.  She is likely to suffer flare-ups of psychological symptoms, and is at risk for future mental health problems.

In valuing the Plaintiff’s non-pecuniary damages at $250,000 the Court reviewed a handful of useful precedents and provided the following helpful comments:

[54]           In the leading case Y.(S.) v. C.( F.G.) , (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (C.A.), the British Columbia Court of Appeal stated that the application of the “cap” on non-pecuniary damage awards set out by the Supreme Court of Canada in the trilogy Andrews v. Grand & Toy Alberta Ltd., , [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, Arnold v. Teno, [1978] 2 S.C.R. 287, 83 D.L.R. (3d) 609, and Thornton v. School District no. 57 (Prince George), [1978] 2 S.C.R. 267, 83 D.L.R. 480, is not appropriate for intentional torts of a quasi-criminal nature, such as sexual abuse.

[55]           Because Y.(S.) lifted the cap on non-pecuniary damages in sexual abuse cases, the case law prior to Y.(S.) is of limited assistance.

[56]           In Y.(S.), the Court of Appeal also stated that in sexual abuse cases aggravated damages do not form a separate head of damages.  An award for non-pecuniary damages is assessed by taking into account aggravating circumstances, particularly in a case of sexual abuse, where the physical harm is not easily separated from the emotional and psychological harm.  Aggravating circumstances include the relationship between the parties, particularly if it is one of trust, the duration of the abuse, the number of assaults, the age of the victim, the degree of violence and coercion, the nature of the abuse, the physical pain and mental suffering associated with the abuse, as well as lack of remorse on the part of the defendant.

[57]           The Court of Appeal, at para. 55, noted the difficulties in quantifying damages in cases of sexual assault:

We are just beginning to understand the horrendous impact of sexual abuse.  To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water.  The possible consequences of such abuse are not capable of critical measurement.

[58]           And further, at para. 56:

Comparison with the awards made in similar cases is helpful in maintaining consistency, and therefore giving fair and equivalent treatment to all victims.  But the impact on individuals in particular circumstances of sexual abuse is so difficult to measure that other cases can only provide a rough guide for assessment in this case.

[81]           The case law discusses the harm to the victims, but it is not a significant factor in determining quantum in such cases.  It is reasonable to presume harm, and as noted in Y.(S.), there are particular difficulties in measuring and predicting the lifelong effects of sexual abuse.  The fact that the plaintiff presently appears to be “resilient” is not a reason to diminish her award of damages.

[82]           The most significant aggravating factors are that the defendant was the plaintiff’s father and sole caregiver, that she was very young during the abuse, and that the acts were very invasive and serious.  The most similar case is Y.(S.).  In all the circumstances, the plaintiff is entitled to $250,000 for non-pecuniary damages.

I encourage anyone considering a BC Civil Lawsuit for damages for harm caused by historic sexual abuse to review this case and the precedents cited therein to gain a good understanding as to how BC Courts value pain and suffering and loss of enjoyment of life in these cases.

Another interesting aspect to this decision is the Plaintiff’s potential ability to collect on the judgement.  As previously discussed, a successful civil lawsuit for damages may not be worthwhile if the responsible defendant does not have the ability to pay.  Here the Defendant was criminally convicted and spent time in prison.  He very well may not have had the means to pay the judgement.  However, he was left an inheritance and the Court noted that this money “is available to be applied to a judgement in this case“.

Before getting into the time and expense of a civil lawsuit consideration should be given to the ability to collect on the judgement if the claim proves successful.  If the person directly responsible for the assault has no financial means the law of vicarious liability should also be canvassed.

BC Personal Injury Claims and Reimbursement of "Sick Bank" Time

Many BC employees have the benefit of a “sick bank“.  For those of you not familiar with these, a sick bank is basically a pooled amount of time which an employee is able to be absent from work for sickness and still receive full pay.  Sometimes a sick bank grows over the years of employment provided it is not drawn from.
When you are injured as the result of someone else’s carelessness, become disabled for a period of time and have to use up your “sick bank” are you entitled to recover damages to reflect the value of this used up asset?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Burton v. Bouwman) the Plaintiff was involved in a total of 3 motor vehicle collisions.  Following each collision he missed time from work and had to draw money from his sick bank.  In his lawsuit against the at-fault motorists he claimed for various damages including damaged for his depleted sick bank.
The Plaintiff largely succeeded in this claim.  In awarding the Plaintiff compensation for this loss Madam Justice Gray summarized and applied the law as follows:

[157] Mr. Burton is not entitled to receive cash from CSC for unused banked sick leave.  The banked sick leave will only be of value to him if he becomes sick and has insufficient banked sick leave, with the result that he takes an unpaid leave.

[158] There is a real and substantial possibility that Mr. Burton will become sick while still employed by CSC and have insufficient banked sick leave.  Mr. Burton is entitled to compensation to reflect that…

[189] Mr. Burton did not suffer a wage loss as a consequence of the accidents, because he was able to use his banked sick time.  However, he claims lost banked sick leave and annual leave, $21,600 for lost overtime, and an unspecified amount for the past lost opportunity to earn income outside CSC.  The position of the defence is that Mr. Burton should recover nothing for these claims.

[190] As discussed above, Mr. Burton is entitled to be compensated for the loss of his banked sick time.  CSC paid Mr. Burton about $12,000 for his banked sick leave after the First Accident, about $250 after the Second Accident, and about $18,700 after the Third Accident.  That is a total of about $30,950.

[191] The method of compensating a continuing employee for loss of sick bank credits was discussed in Bjarnson v. Parks, 2009 BCSC 48, and the cases cited in it.  In that case, and in Roberts v. Earthy, [1995] B.C.J. No. 1034 and Choromanski v. Malaspina University College, 2002 BCSC 771, the court awarded the full amount of salary corresponding to the banked sick leave, without making any deduction for contingencies.  Other cases cited in Bjarnson made such a deduction.

[192] I would assess the likelihood that Mr. Burton will become sick while working at CSC and have insufficient banked sick leave at 75 percent.  As a result, Mr. Burton is entitled to damages of $22,500 in respect of his lost banked sick leave.

$70,000 Non-Pecuniary Damages for Chronic Myofascial Pain

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, (Bove v. Lauritzen) awarding a Plaintiff just over $180,000 in total damages as a result of a 2006 BC Car Crash.
Liability was admitted by the Defendant in the lawsuit leaving the Court to deal with only the issue of damages.
Madam Justice Gray accepted the opinion evidence of Dr. Hunt, an expert in the field of “emergency medicine and pain medicine” in its in entirety.  Most of Dr. Hunt’s opinion is reproduced at paragraph 42 the highlights of which are as follows:

Medical Diagnosis

1.         Chronic myofascial pain involving the right SI joint and right buttock with referred pain to the right hip.

2.         Chronic myofascial pain right inguinal region.

3.         Chronic myofascial pain right shoulder girdle.

4.         Mechanical low back pain of a posterior element pattern localizing to the right L5/S1 facet joint region.

5.         Mood disorder (mild) and sleep disorder (moderate) secondary to chronic pain condition.

6.         Left trochanteric bursitis (mild).


1.         Restrictions with respect to her lower back and right buttock with referred pain.

(a)        She must avoid all repetitive bending, twisting, stooping and moving in and out of awkward positions.

(b)        She must work only in the sedentary category.

(c)        She must avoid all prolonged sitting with no periods greater than 20 min or prolonged standing with periods no greater than 10 min or prolonged walking greater than 20 min.

(d)        She must be able to stand, sit and move at will.

(e)        She must avoid all lifting greater than 5 lbs and must keep the weight that she is lifting close to her body and avoid carrying it for any distance.

(f)        Materials handling or activity is best done between mid chest and waist.

(g)        She must avoid activities which involve extension of the spine.

(h)        She must avoid walking repetitive flights of stairs or inclines.

2.         Restrictions with respect to her mid thoracic spine and right shoulder girdles include:

(a)        Avoid prolonged static positions of the neck and thoracic spine such as leaning forward.

(b)        All activities with regards to the upper limb should be done below mid chest and she should avoid any repetitive reaching, pushing or pulling activities of the right upper limb.

When she is capable of attempting to return to a productive life, it will need to be on a very paced graduated return to work basis; it should take place over approximately two months and should be supervised by an occupational therapist and/or vocational counselor.

In assessing the Plaintiff’s non-pecuniary damages at $70,000 Madam Justice Gray provided the following summary of the Plaintiff’s accident related injuries:

[45]        In summary, I find that the January 24, 2006 accident caused Ms. Bove moderate to severe chronic myofascial pain in her right buttock and lower lumbar region with symptoms reaching into the right hip and right inguinal region, and chronic myofascial pain in her right shoulder girdle, mechanical low back pain, mild mood and sleep disorder, and mild left trochanteric bursitis. It is likely that the bursitis will resolve fully. It is likely that the other problems will be ongoing, although there may be improvement in the low back pain and sleep disorder.

[46]        Ms. Bove’s need for frequent changes of position, and the other restrictions described by Dr. Hunt, make it unlikely that Ms. Bove can be competitively employable…

54] Ms. Bove is entitled to $70,000 for non-pecuniary damages arising from the January 24, 2006 accident