Tag: Madam Justice Kloegman

More on BC Personal Injury Claims and Radiologists Evidence

Written by admin on May 7, 2010. Posted in Civil Procedure, Uncategorized. 54 Comments on More on BC Personal Injury Claims and Radiologists Evidence

(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court. Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show. Excluding such evidence can be fatal to a claim. 2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash. At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘. The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given. Mr. Justice Schultes agreed and in doing so gave the following reasons:

[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident. This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court. In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.

[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient. The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it. At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays. It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence. Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

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In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.” The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion. The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances. The Court agreed. In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption that there has been a partial tear of the subscapularis tendon. The defendant takes issue with that alleged fact. The plaintiff has taken no steps to prove the truth of this assumption. Originally, she did not intend to enter the radiologist reports interpreting the MRI scans. Now counsel advises that she could lead them through Dr. Chu. However, all this would do is show the source of Dr. Chu’s assumption. It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists. Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear. Dr. Chu’s second report is based solely on this assumption of a partial tear. There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

$60,000 Non-Pecuniary Damages for Chronic Post Traumatic Tendinopathy

Written by admin on March 19, 2010. Posted in ICBC Shoulder Injury Cases, Uncategorized.

(Please note the Trial Court’s decision regarding mitigation of damages in the below post was overturned on Appeal. You can click here to read the BC Court of Appeal’s judgement)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with an assessment of damages for a shoulder injury, specifically a post traumatic tendinopathy.
In today’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC. Her vehicle was struck while travelling through an intersection by the Defendant who failed to stop at a stop sign. Fault was admitted by ICBC focusing the trial on the Plaintiff’s injuries.

Non-Pecuniary Damages Discussion

The Plaintiff suffered various soft tissue injuries to her neck and back that healed before trial. The Plaintiff’s worst injury was to her left shoulder. Dr. Day, an orthapeadic surgeon gave evidence that the Plaintiff suffered an “abnormality in the subscapularis tendon at the site of the superior border. In addition there was inflammation in the subacromial bursa.” Dr. Day also testified that the plaintiff had a “post traumatic tendinopathy causing some discomfort“.
The Plaintiff required surgery to “clean up” a “thick, tight subacromial bursa” because this caused irritation.
Following this the Plaintiff continued to have some shoulder pain which was aggravated by certain movements. The Court accepted that this would likely continue into the future. In assessing the non-pecuniary loss the Plaintiff suffered as a result of her injuries at $60,000 Madam Justice Kloegman found as follows:

[11] Due to the plethora of shoulder injury cases in the case law, it is important to distinguish the plaintiff’s shoulder injury from some of the shoulder injuries suffered by other plaintiffs in other cases. In the case at bar, the plaintiff does not have:

1. neurological deficit;

2. instability in her shoulder;

3. frozen shoulder;

4. restricted range of motion;

5. dislocation or subluxation;

6. arthritis; and

7. muscle wasting.

[12] However, I accept that the plaintiff does have ongoing chronic pain in her shoulder which is exacerbated by certain movements. There was no suggestion that the plaintiff was a malingerer or was exaggerating her symptoms. Notwithstanding that pain is a subjective symptom, the medical professionals found some objective corroboration in the tendinopathy and bursitis. Unfortunately, the plaintiff will likely continue to suffer various degrees of pain in her left shoulder in the future. To this extent she is mildly restricted in her activities and potential for employment.

[13] In summary, I find that the accident caused injury to the plaintiff, primarily in her left shoulder joint, which injury is mildly impairing and likely of a permanent nature. This injury has caused and will continue to cause the plaintiff pain and suffering, and has caused and will continue to cause some loss in her ability to earn income both in the past and the present. ..

[21] As I have found that the plaintiff is likely permanently impaired, albeit to a minor degree, the cases of Thauli, Grant and John are more helpful. Reviewing these cases and keeping in mind the more severe injuries described in those cases, I am of the view that $60,000 is reasonable compensation for the plaintiff’s pain and suffering in this case.

Failure To Mitigate

This case is also worth reviewing for the Court’s discussion of the law of mitigation. Here Madam Justice Kloegman found that the unreasonably failed to follow her doctors advice to have a cortisone injection in her shoulder. The court found that there was a chance that this would have improved her symptoms.

The Plaintiff did not follow her doctor’s recommendation apparently because of “what she read on the internet” and discussions she had “with her claims adjuster and chiropractor“. The court found that these were unreasonable explanations for not following the doctor’s advice and as a result reduced the Plaintiff’s damages by 10%. The Courts discussion of mitigation can be found at paragraphs 34-35 of the reasons for judgement.

Motorist At Fault for Failing to Use Emergency Brake When Exiting Vehicle

Written by admin on December 22, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for Judgement were released today by the BC Supreme Court, Fort St. John Registry, dealing with an interesting set of facts.
In today’s case (Shular v. Seneca Enterprises Ltd.) the Defendants owned/operated a motor home that stalled. The Plaintiff came across this stalled vehicle and tried to assist the Defendants. The Plaintiff helped move the motor home across the road then got under it trying to repair it when it rolled back over him and caused serious injury to his hip and leg.
The Defendants were found 75% responsible for the Plaintiff’s damages for failing to engage the emergency brake before allowing the Plaintiff under it and the Plaintiff was found 25% at fault for failing to verify if the vehicle was safe before trying to repair it.
In coming to this finding Madam Justice Kloegman made the following findings and analysis:
I find from all the evidence, on a balance of probabilities, that (the Defendant) likely knew, or ought to have known, that the plaintiff had gone under the motor home to try and change the gears of the motor home manually…

[9] I find that the defendants owed a duty of care to the plaintiff to ensure that the motor home was safely secured while he was under it. The reasonable standard of care in such a situation is set out in the Occupational Health and Safety Regulation, B.C. Reg. 296/97, of the Worker’s Compensation Act, R.S.B.C. 1996, c. 492, and the Seneca Enterprises Ltd. protocol as described by Wahl.

[10] Section 17.2.2(2)(b) of the Occupational Health and Safety Regulation of the Worker’s Compensation Act states that the following procedure must be in place if a vehicle is used to transport workers:

The parking brake must be engaged when the vehicle is left unattended and the wheels locked or chocked if the circumstances require.

[11] Wahl testified that it was standard protocol for them to lock and secure the vehicle if they were not in it. He said the front of the motor home was on a slight incline so it was common sense to put rocks under the wheels to keep the motor home from moving backwards.

[12] The evidence shows that this standard of care was clearly breached by the defendants. Bond openly admitted that he did not engage the emergency brake when he locked up the motor home, and took no steps to secure it from movement. Wahl admitted he was not sure whether they had put rocks under the tires; he thought that they had done so, but that they had not done a very good job of it.

[13] Given the defendants lack of care in the circumstances, they must be found liable to the plaintiff for the accident. In my opinion, it matters not whether the defendants felt intimidated by the plaintiff and his group. ..

[14] From the defendants’ conduct it is reasonable to infer that the plaintiff had the agreement and the consent of the defendants to push the motor home into a safer location and to attempt to repair it. The defendants cannot now say that because they did not initially ask the plaintiff for assistance, that they were not responsible for what ensued. I find that the motor home was in the care and control of the defendants throughout this time period, and that they never lost custody of it to the plaintiff or his group.

[15] The defendants submit as an alternative plea that the plaintiff was contributorily negligent, and I tend to agree. The plaintiff described what was quite a risky procedure of moving the transmission manually into drive so the motor home could be mobilized. He admitted in cross examination he didn’t know what gear the transmission was in, and that he “assumed” the emergency brake was on and “assumed” the motor home was in neutral. He made no independent check to see if his assumptions were correct and I find that he did not take sufficient care for his own safety in the circumstances. I accept his explanation that he thought Bond was attending to the brake, but he should have made sure of this before moving the gears.

[16] Given all the circumstances, and the respective degrees of fault, I find that the plaintiff should be held twenty-five percent liable for his injuries and that the defendants should be held seventy-five percent liable for the plaintiff’s injuries.