Tag: Madam Justice Kloegman

$60,000 Non-Pecuniary Assessment for "Moderate To Severe" Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries from a motor vehicle collision.
In today’s case (Farbatuk v. Lagrimas) the Plaintiff was rear-ended in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained moderate to severe soft tissue injuries to his neck and back.  The Plaintiff’s physician gave evidence that the prognosis for recovery was extremely guarded although the Court rejected this finding that any lingering symptoms did not “debilitate or impair” the Plaintiff in any meaningful way.  In assessing non-pecuniary damages at $60,000 Madam Justice Kloegman provided the following reasons:

[22]         It appears from the medical evidence that all three expert witnesses agreed that the plaintiff suffered a moderate to severe whiplash to his neck and back in the accident. It also appears that the medical experts agree there is evidence of a pre-existing degenerative condition in the plaintiff’s back and neck, whether D.I.S.H. or something else.

[23]         Dr. Miki described the plaintiff’s prognosis as “extremely guarded”, particularly in relation to the work the plaintiff has done for the previous 25 years. Dr. Richardson’s prognosis for the plaintiff’s neck and back was moderate, with no increasing risk of developing osteoarthritis. Dr. Werry stated in his report that the plaintiff will probably continue indefinitely to experience variable neck and low back pain and stiffness, but that he probably has not reached maximum medical improvement.

[24]         As stated earlier, Dr. Miki’s evidence was given in an advocational manner and he relied heavily on the plaintiff’s self-reporting. His prognosis of “extremely guarded” was not consistent with some of his clinical notes that had been omitted from his report. These showed steady and continuous improvement in the plaintiff’s position. His prognosis was also not consistent with the evidence of Louise Craig, functional capacity evaluator, who opined that the plaintiff’s main limitation is in his range of motion in his neck. She reported that the plaintiff felt an increase in symptoms from sustained sitting and stooping, but that he showed a tolerance for exertion of low to upper range of heavy physical strength, very good core strength and aerobic fitness, no limitation in standing, walking, crawling, kneeling, crouching, managing stairs, balancing, reaching, gripping and most importantly; he was able to carry a medium load of 50 lbs on a frequent basis which placed his ability to work in the Heavy category of occupations.

[25]         In my view, the plaintiff’s prognosis is more optimistic than either Dr. Miki or he would admit. Although 2½ years have passed since the accident and the plaintiff still complains about neck pain, back pain and limited range of motion, I am not satisfied, on a balance of probabilities, that these subjective complaints are sufficiently supported by any objective evidence of continuing injury. Simply put, he has not established that his ongoing complaints are serious enough to debilitate or impair him in any way…’

[46]         I find that the plaintiff’s situation is closer to those of the plaintiffs in the above cases cited by defence. In my view, an award of $60,000 is fair compensation for the plaintiff’s non-pecuniary losses.

Excessive Drug Use Linked To Collision Related Injuries, Non-Pecuniary Loss Assessed at $100,000

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s drug abuse problems were caused by collision related injuries.
In today’s case (Fabretti v. Gill) the Plaintiff was 12 years old when involved in a serious head on collision which killed the occupants in the at fault vehicle.  The Plaintiff suffered a mild brain injury, a variety of soft tissue injuries and chronic, but not disabling, pain.  Subsequent to this the Plaintiff started abusing drugs which negatively impacted his life.  At trial the Court found that the Plaintiff’s substance abuse difficulties were linked to the collision related injuries.  In assessing non-pecuniary damages at $100,000 Madam Justice Kloegman provided the following reasons:
[77]         Dr. Lu stated that it was impossible to know whether or not the plaintiff would have developed an addiction in the absence of the 2005 Accident. Once again, the plaintiff does not have to prove to a scientific certainty that he would not have developed a drug addiction but for the Accident, only that it is more likely than not it was caused by the Accident. On the totality of the evidence, I find on a balance of probabilities that the plaintiff’s drug addiction was caused by the Accident.
[78]         ICBC argues that a causal connection between the Accident and the plaintiff’s addiction can be shown only if the plaintiff’s alleged reason for the drug use as a coping mechanism or reaction to the chaos that followed the Accident is found to be true. ICBC submits that this allegation can only hold true if the plaintiff and his family were found to be credible. I do find the evidence of the Fabrettis to be credible and consistent with the clinical records, so this submission fails.
[79]         ICBC points to evidence that the plaintiff might have started drugs before the Accident, and in response to peer pressure to which he would have been exposed in any event.
[80]         This proposition of ICBC was put to Dr. Lu during cross-examination. He explained that although prior use may increase risk, many people experiment with recreational drug use but only a small percentage go on to develop an addiction. By age 15, 60% of people living on the west coast in Canada have tried marihuana. More than 80% of people experiment with drugs, but less than 10% become regular users. Dr. Lu had no doubt that the Accident caused the plaintiff’s addiction.
[81]         Accordingly, I find that the plaintiff’s drug addiction was more likely than not caused by the Accident…
[91]         On a balance of probabilities, I find that the plaintiff has no permanent physical disability arising from his injuries. He has no lasting cognitive effects from the Accident. The impact of his chronic pain on his function does not amount to an impairment and should not disable him from employment, although his capacity to perform all forms of employment to the same degree as before the Accident may have been realistically affected. At present his marihuana consumption is a negative factor in his full functional recovery, and must be brought under control. From the evidence, the success of the plaintiff’s future is highly dependent on eradicating his excessive drug use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high school without assistance. I believe the plaintiff, with the help of his family and professional addiction treatment, has the fortitude to overcome his dependency on marihuana. Nonetheless, I am aware that like any other addict, he will always be at risk of relapse…
[97]         From the cases cited to me, I found the decisions of Houston v. Kine, 2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most helpful. In Parfitt, the court accepted that the plaintiff did not have a permanent disability. In Houston, the court found that the prognosis was favourable with appropriate treatment. I find the impact of the plaintiff’s injuries to be slightly less than both the plaintiffs in Parfittand Houston. Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.
 

Diminished Homemaking Capacity Damages Awarded Despite Pre-Existing Disability

If a Plaintiff is vocationally disabled due to a pre-existing condition this does not preclude a court from assessing damages for diminished housekeeping capacity.  This was demonstrated in reasons for judgement released last week.
In last week’s case (Chow v. Nolan) the Plaintiff was largely disabled from a  pre-existing traumatic injury.  The Plaintiff was involved in a 2008 collision which worsened his pre-existing condition.  Although the Plaintiff’s claims for diminished earning capacity were dismissed the Court accepted the aggravations further diminished his abilities to take care of his household and assessed damages for this loss.  In doing so Madam Justice Kloegman provided the following reasons:
[76]         There were two reports from occupational therapists recommending the provision of homemaking services to the plaintiff. The biggest difference between them is that the plaintiff’s expert witness, Ms. Gibson, assumed that the plaintiff would be in need of these services until age 70, 75 or 80. This is not a reasonable assumption in light of the evidence of prognosis. Dr. Chu reported that the plaintiff will return to pre-2008 accident status at some point. Dr. Gill testified that two years is probably too soon to expect recovery to his pre-2008 accident status, but perhaps five years is reasonable.
[77]         In my view, on the totality of the evidence, it would not be reasonable to award the plaintiff for future losses that extend past five years from trial. I accept Ms. Gibson’s list of items which were submitted by the plaintiff as being reasonably expected to incur as a result of the plaintiff’s decrease in function, but they must be restricted to a period of five years. When each of these items is paid for separately, it is much more expensive (almost double), than hiring one person to perform these jobs. Ms. Gibson’s suggestion of using an agency person at a rate of $24 per hour at an annual cost of $22,276.80 ($21,216 plus 5% GST) is the most reasonable course of action.
[78]         This figure should be reduced by 20% to $17,821.40 to reflect reasonable positive contingencies such as not requiring as much assistance with meal preparation, transporting daughter, etc., on those days when the plaintiff feels capable of handling such things himself.
[79]         The present value of $17,821.00 over five years is $14,756.00 per year, for a total of $89,108. I award the plaintiff $89,108.00 for loss of homemaking capacity in the future.

$40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial.  Reasons from the BC Court of Appeal can be found here.
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.
In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign.  Fault was admitted.   The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement.  Following this the Plaintiff developed trochanteric bursitis.

He continued to have problems due to this and other complications of his pre-existing condition.
The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries.  The court found that this aggravation ran its course by mid 2011.  The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable.  In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:

[74]The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.

[75]The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…

[82]Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).

Court Refuses To Sever Liability From Quantum Where Damages Disputed

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.
Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:
[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?
The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference


Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.
In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.
This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.
The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:
21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.
22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.
25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.
26. The appeal is allowed and Master Bouck’s orders will be set aside.

Defendant Not Liable For Collision Caused By Black Ice


Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.
In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.

$20,000 Non-Pecuniary Damages for "Minor Exacerbation of Pre-Existing Symptoms"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries caused by a so-called Low Velocity Impact.
In today’s case (Pearlman v. Phelps Leasing Ltd.) the Plaintiff, a 77 year old retired lawyer, was involved in a 2007 collision.  He had pre-existing injuries from a 2004 collision and the Court found that these were exacerbated for a short while following the 2007 crash.  The Court expressed serious concern about the Plaintiff’s credibility with the following observation:
[3] The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. Amongst his many inconsistencies and exaggerations, the most shocking was that the testimony of his injuries in the trial before me was nearly identical to the testimony he gave at the 2008 trial, in which he blamed the 2004 Accident for all the problems he was experiencing in 2008.
Despite this the Court found that the Plaintiff did suffer injury in the 2007 crash.  In assessing non-pecuniary damages at $20,000 Madam Justice Kloegman provided the following comments:
[44] After having reviewed all of the exhibited medical records and reports, and after considering all of the viva voce testimony, it seems fair to conclude, on a balance of probabilities, that it is more likely than not that the plaintiff experienced from the 2007 Accident an exacerbation of his pre-existing symptoms. However, it appears to have been minor and not long in duration. The plaintiff developed no new symptoms. He was back doing physical labour within a few days, and his complaints from that time to the present would likely have continued, regardless of the 2007 Accident. His pre-existing condition was well described by Dr. Baird and Dr. Keyes and there was no reliable, positive evidence to indicate that he developed some further injury of a permanent nature as a result of the 2007 Accident. It is telling, indeed, that the plaintiff’s statement of claim with respect to the 2004 Accident is almost identical to his statement of claim respecting the 2007 Accident…
[47] The case law indicates that a reasonable award of non-pecuniary damages for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is interesting to note that in both these other cases, the plaintiff was found to be lacking credibility and the Court was obliged to rely on the medical evidence to determine the cause of the plaintiff’s claims of injury. I find myself in a similar position, and on the evidence before me, I award the plaintiff $20,000 in total damages arising from the 2007 Accident.

Prejudice To Defendant Not Enough To Compel Plaintiff to Attend "Responding" IME

(Update November 16, 2011The case discussed in the below post has now been published and full reasons for judgement can be found here)
One of the patterns that is becoming very clear under the New Rules of Court is that Parties ignore the 84 day requirement for exchange of expert evidence at their peril.
Often times Defendants apply for an order compelling a Plaintiff to attend an Independent Medical Exam beyond this deadline.  Numerous cases have considered such applications with the argument that an assessment is necessary in order to obtain a ‘responding‘ report under the more generous 42 day deadline of Rule 11-6(4).  Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, considering and rejecting such an argument.
In today’s case (Scott v. Ridgway) the Plaintiff was injured and sued for damages.  In the course of the lawsuit the Plaintiff served the report of a vocational consultant.  The Defendant applied for an order to compel the Plaintiff to attend an independent exam in order to obtain a responding report.   The Defendant brought the application after the 84 day deadline.  Madam Justice Kloegman dismissed the application finding that prejudice is not enough to compel an IME for the purpose of a responding report.  The Court provided the following useful reasons:
[6]  I am not persuaded that the plaintiff is required to attend before Dr. Banks in order for the defendant to file a responsive report.  I am aware of the prejudice claimed by the defendant that their expert’s opinion may be given less weight because of lack of examination of the plaintiff.  However, if they are prejudiced, it is of their making and not the result of any conduct of the plaintiff.
[7]  The rules are clear.  They must be obeyed in the absence of special circumstances.  There are no special circumstances here that would allow the defendant to file a report containing fresh opinion.  The defendant will be restricted to analyzing and respond to the plaintiff’s report.
I should note that some previous cases have ordered physical examination for responding report purposes, however, in such cases the Court was presented with affidavit evidence from the proposed expert explaining why such an examination is necessary.
In today’s case the Defendant did provide an affidavit from a doctor but the court placed no weight in it and criticized it for being “lifted from another affidavit sworn by another expert in another case with other expertise than that of Dr. Cook”.
Today’s reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

BC Lawsuits and Court Jurisdiction, The "Real and Substantial Connection" Test


If you want to sue somebody in British Columbia one thing that must be considered is whether the BC Supreme Court has jurisdiction to hear the case.  With few exceptions, a Defendant can’t be sued in the BC Supreme Court unless they live here, consent, or if there is a “real and substantial connection” between British Columbia and the subject of the lawsuit.  Reasons for judgement were released earlier this week applying this test.
In this week’s case (Broman v. Machida Mack Shewchuck Meagher LLP) the Plaintiff was injured in a 2004 motor vehicle collision in Alberta.  He hired a BC lawfirm to help him with his claim.  That lawfirm told him he ought to sue in Alberta.  The BC lawfirm then hired an Alberta lawfirm to assist with the lawsuit.
Ultimately the Plaintiff was displeased with the result reached.  The Plaintiff alleged that his lawyers did not sue all the entities they should have and this compromised his rights.  The Plaintiff brought a lawsuit against the various lawyers in the BC Supreme Court.  The Alberta defendants challenged the lawsuit arguing that the BC Supreme Court does not have the jurisdiction to hear the claim.   Madam Justice Kloegman agreed and ordered that the lawsuits be transferred to Alberta.  In reaching this conclusion the Court provided the following reasons explaining why the BC Supreme Court did not have a ‘real and substantial‘ connection with the facts underlying the lawsuit:

[25]        One of the stated purposes of the CJPTA is to bring Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077.  In Morguard at 1108-1109, La Forest J. observed that reasonable limits must be placed on the exercise of jurisdiction against defendants served outside of a province if the courts of other provinces were to be expected to recognize each other’s judgments.  He did not define the “real and substantial connection” test, but remarked that it was not intended to be a rigid test. It should simply capture the idea that there must be some limits on the claims to jurisdiction.  He noted that the principles of order and fairness required consideration of the interest of the parties.  He concluded that the approach of permitting suit where there is a real and substantial connection with the action provided a reasonable balance between the rights of the parties,

[26]        When I apply the concept of order and fairness in deciding jurisdiction in the cases before me, I must side with the Albertan defendants.  They did not come to British Columbia looking to perform services for which they may be responsible to answer for in a British Columbia Court.  The plaintiff and SHB sought them out in Calgary where they practiced and where they would have expected to answer for any deficiencies in their service.  On top of that, it would be more orderly (and undoubtedly safer) for an Alberta Court, which would be more familiar with Alberta standards of practice, the legislation and law governing motor vehicle accident injury awards in Alberta, claims on the Fund, and Alberta limitation periods, to decide the issues in dispute.

[27]        S. 6 of the CJPTA has no application because the Alberta Court of Queen’s Bench is a court of competent jurisdiction and is available to try these matters, without being inordinately inconvenient to Mr. Borman and SHB.  Therefore, I am transferring both of these proceedings to Alberta where they can be litigated together.  In doing so, I am well aware that Mr. Broman would ordinarily be entitled to sue his British Columbia lawyers in British Columbia.  However, as I stated earlier, at the heart of both these actions is the conduct of MM, not SHB.  There is nothing in the pleadings or the evidence before me to suggest that SHB are liable to Mr. Broman except vicariously for any negligent conduct of MM.  It would be impractical to hive off Mr. Broman’s claims against SHB from the rest of the action and I see no reason to do so.

[28]        Therefore the defendant MM shall have an order transferring the entirety of both the Vancouver and New Westminster actions to Calgary, Alberta pursuant to Part 3 of the CJPTA.  The details of the order required to ensure the effective transfer of the proceedings to Alberta can be spoken to if counsel cannot agree.

You can click here to read my other posts discussing the BC Court Jurisdiction and Proceedings Transfer Act and the Jurisdiction of the BC Supreme Court.

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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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