In the latest example of a pattern that is all too common in injury litigation, reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, rejecting and placing “no weight” on the medical evidence of an expert retained by a Defendant’s insurer.
In today’s case (Sharma v. Chui) the Plaintiff was involved in a 2012 crash that the Defendant accepted liability for. The Plaintiff suffered chronic soft tissue injuries as a consequence of the crash which were partially impairing in her functioning. In the course of the lawsuit ICBC, the defendant’s insurer, retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and the likelihood of the injuries persisting into the future. In rejecting this opinion and placing ‘no weight‘ on it Madam Justice Sharma provided the following critical comments:
Update February 25, 2019 – The below paragraph 71 was edited in revised reasons for judgement published today and now reads as follows:  This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.
Earlier this year ICBC instructed its staff to ignore the law when valuing cases and instead make offers based on an internal injury ‘meat chart’. The result is cases not settling and going to trial.
The first wave of these has now hit the courts and the judiciary seems none too impressed by ICBC and their ‘institutional’ tactics.
In reasons for judgment released today (Tsai v. Murdoch) ICBC was harshly criticized. The Plaintiff was injured and sought to settle her case. ICBC declined and made a low settlement offer subject to their ‘meat chart’ guidelines. The plaintiff sensibly rejected the offer and went to trial where damages were assessed under the law and resulted in an award greater than what she was prepared to settle for.
The Court went on to award the plaintiff double costs for ICBC’s tactics and criticized their new approach. In doing so Madam Justice Sharma provided the following reasons:  This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. I was informed the defendant had made a settlement offer, but withdrew it for “institutional” reasons. Whatever “institutional” reasons are they do not protect in any way a litigant from bearing the consequences of its choices in the litigation. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.
The legal principle of “agony of collision” sometimes also called “agony of the moment” gives wide latitude to a Plaintiff who is confronted with a sudden and unexpected hazard on the roadway due to someone else’s negligence. This principle was in action in reasons for judgement published today by the BC Supreme Court, Vancouver Registry.
In today’s case (Biggar v. Enns) the Plaintiff was operating a motorcycle and was riding in a staggered fashion behind the Defendant who was also operating a motorcycle. The Defendant rounded a curve and was out of sight of the plaintiff. During this time the Defendant took his eyes off the road and drifted into the oncoming lane of traffic. He crossed back over the centre line and re-entered his intended lane of travel roughly perpendicular to the proper direction of travel.
At this moment the plaintiff rounded the corner, saw the Defendant in his lane and braked hard losing control of his bike and crashing.
The Defendant argued the Plaintiff was partly at fault as a more prudent motorist could have avoided the hazard he posed. The Court disagreed and in doing so relied on the agony of collision principle finding the Defendant fully at fault. Madam Justice Sharma provided the following reasons:
 In my view, the phrase “agony of the moment” aptly describes the plaintiff’s situation. The plaintiff’s first reaction was to avoid colliding with the defendant, or an oncoming vehicle. Therefore, it was a reasonable course of action for him to brake hard which caused his bike to fall and slide. The defendant agreed that in order to avoid hitting him, the plaintiff had to brake hard, and that made the plaintiff’s bike fall.
 In my view the evidence is clear that the plaintiff was riding in a prudent and careful manner. There is no evidence that his speed was inappropriate for the conditions of the road or any other circumstance.
 As noted earlier, I do not accept the defendant’s argument that once he lost sight of the defendant in front of him, the plaintiff should have slowed down more than he did. Also, I have already concluded the plaintiff was driving at an appropriate rate of speed, and that he had already slowed down.
 Drivers are entitled to assume that other people will be driving in a prudent and safe manner. In Bern v. Jung, 2010 BCSC 730 the plaintiff lost control of a bicycle because of a sudden and unexpected presence of the defendant’s vehicle travelling in the wrong direction. The Court noted, at paras. 13-14, that the plaintiff was forced to act quickly and apply his brakes quickly and that he should not be found contributorily negligent for doing so.
 In this case the plaintiff was entitled to assume that his friend had negotiated the curve safely; coming upon the defendant situated in front of him and perpendicular to his line of traffic was unexpected and sudden. The plaintiff cannot be blamed for doing what I find to be the only reasonable thing he could do to avoid a more serious accident: applying his brakes hard. I conclude it was the defendant’s string of actions (looking to the canyon, and trying to get back in position instead of waiting on the shoulder) that caused the accident.
 For all those reasons, I find the defendant 100% liable for the accident.
Adding to this site’s archived postings of ICBC chronic pain cases, reasons for judgement were released this week by the BC Supreme Court, reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain in a Plaintiff pre-disposed to somatization.
In the recent case (Alafianpour-Esfahani v. Jolliffe) the Plaintiff was involved in a 2012 rear end collision that the Defendant was responsible for. The Plaintiff alleged brain injury altogether this claim was not proven at trial. The court found the plaintiff was pre-disposed to somatization and suffered from a chronic pain disorder following the collision. In assessing non-pecuniary damages at $120,000 Madam Justice Sharma provided the following reasons:
 In light of the following factors, I find Ms. Alafianpour-Esfahani is entitled to $120,000 in non-pecuniary damages:
a) the accident caused soft tissue injuries to her neck, back and shoulder that resulted in headaches and developed (in combination with her predisposition to somatization) into chronic pain;
b) she has not likely reached maximum medical improvement of her physical symptoms, but any further improvement depends upon the success of addressing the reactivity of her nervous system, which will be challenging;
c) her physical symptoms have been prolonged because of her psychiatric condition characterization by a vulnerability to somatization and pathological nervous system reactivity;
d) her prognosis for improving her condition by following a thorough program of desensitization is fair, but that is tempered by the chronicity of her condition because it has been left untreated fro 3 ½ years;
e) the accident has negatively impacted all aspects of her life, including her relationship with her family, her social interaction, her ability to work, her recreational activities, her ability to maintain her home and yard, her ability to cook for family and friends; her ability to provide emotional support to her children, especially her daughter and her ability to travel.
In what I believe is the first case of its kind in British Columbia, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages for surrogacy fees for future potential pregnancies after a collision compromised the Plaintiff’s ability to safely carry a child.
In today’s case (Wilhelmson v. Dumma) the Plaintiff was “the sole survivor of a horrendous, high-speed, head-on collision that killed three other people”. The collision caused profound injuries leading to permanent disability. Included in the aftermath of this collision was an inability of the Plaintiff to safely carry a child. In awarding damages for surrogacy fees should the Plaintiff wish to have a child by such means Madam Justice Sharma provided the following reasons:
 Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child — the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.
 I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.
 The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox,  A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):
I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned…..I prefer … to assess quantum for infertility discretely, by reference to the circumstances of each case.
 The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.
 Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.
In a demonstration of the judicial flexibility that exists under the BC Supreme Court Rules when assessing costs consequences following trials with formal offers in place, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs despite failing to beat a Defense formal settlement offer.
In today’s case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision. Both parties were found partially at fault. The Plaintiff suffered various physical injuries but also advanced a brain injury claim which was not accepted at trial. Prior to trial ICBC issued a formal settlement offer of $125,000. At trial the Plaintiff’s damages were assessed at $78,897 less 30% to reflect the plaintiff’s contributory negligence.
ICBC sought to strip the Plaintiff of post offer costs as a result but the Court exercised its discretion to award the Plaintiff full costs. The Court was influenced by the fact that the costs of the prosecution were significant and an award of costs to ICBC would strip the Plaintiff of the totality of his damages. In reaching this decision Madam Justice Sharma provided the following reasons:
 The plaintiff submitted that the award of costs in this case exceeds the total amount of the judgment. In his written submissions, the plaintiff states that “[i]f the court orders that the Plaintiff is to pay costs to ICBC, it means that Mr. Anderson must pay the entire judgment award to ICBC, instead of spending this money on his health condition and prognosis.” I agree that is a significant factor if the court is to be mindful that costs awards should not punish plaintiffs from taking forward meritorious claims, as discussed above.
 The plaintiff also says that the defendant was defended and funded by the insurer, whereas Mr. Anderson is impecunious having lost the ability to work, and previous cases have held this is a proper consideration: Smith v. Tedford, 2010 BCCA 302; Hunter v. Chandler, 2010 BCSC 1124 at paras. 23-25; Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369 at para. 9; andMartin v. Lavigne at para. 23. I agree. Although there was no evidence before me about Mr. Anderson’s impecuniosity, I have no reason to doubt counsel’s word. Certainly at trial the evidence was consistent with counsel’s statement.
 Based on these factors (and all others), the plaintiff submits it would be unfair and unreasonable that the plaintiff be ordered to pay costs to the defendant.
 Finally, the plaintiff points to other factors that he says are relevant to the court’s exercise of discretion. He points out that two expert doctors did conclude that he suffered a brain injury. He also says it was not disputed that after the accident he displayed a number of characteristics consistent with having suffered a brain injury, including the fact that he had a flat affect and his behaviour around his family was different, as well as showing increased irritability, frustration and anger. The plaintiff also points out that the brain scans clearly show that he had brain lesions consistent with a brain injury. The plaintiff had increased difficulties with concentration and learning new tasks. Although I made a finding that both his alcohol consumption and anxiety had significant impacts on his life following the accident, the plaintiff suggests he should not be faulted for failing to guess that those factors would be essentially held against him when making a conclusion about whether he had a brain injury or not.
 The award of costs is an exercise of the court’s discretion, guided by the legal principles identified above. This is not an exercise of counting up which factors favour which party and doing a mathematical calculation. The court must take into account all of the factors weighed against the circumstances of the case. Remembering that ultimately the result must not impose injustice or unfairness on either party, I exercise my discretion and conclude the normal rule of apportionment does not apply and therefore the plaintiff is entitled to 100% of his costs at trial. Because he has been successful on this application, I also award him the costs of this hearing.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, depriving a Defendant of double costs that they otherwise would have been awarded where their formal settlement offers failed to include separate costs and disbursements.
In today’s case (Lanz v. Silver Lady Limousine Services Ltd.) the Plaintiff was involved in two separate collisions and sued for damages. A jury dismissed both lawsuits.
Prior to trial ICBC provided a formal settlement offer of $50,000 and 50% of costs and disbursements. This was later withdrawn and replaced with a settlement offer of $70,000 inclusive of costs and disbursements and finally one of $80,000’new money’. The Plaintiff rejected all of these offers.
The Plaintiff conceded the Defendants were entitled to costs for being on the winning end of the lawsuit but argued no double costs should be awarded as the offers ought not to have reasonably been accepted. In depriving the Defendant of double costs Madam Justice Sharma expressed concern about the Defendant’s reluctance to include full costs in their offers and noted as follows:
 The defendants first offered $50,000 plus only 50% of costs; their last offer was $80,000 “new money” inclusive of costs and disbursements. In my view, there is a legitimate cause for concern when a defendant’s offer does not include costs and disbursements in a personal injury case where liability and damages are at issue. It could be seen as a tactic discouraging the plaintiff from gathering evidence to substantiate her claim in the first place. Plaintiffs carry the evidentiary burden to prove their case and they are obliged to bring forward expert medical evidence. In this case, the defendant’s offer was made more than a year after the plaintiff’s original offer, when presumably significant costs may already have been incurred with no indication from the defendants that settlement was a possibility.
 In the context of this case, I do not find the defendants’ offers to be ones the plaintiff ought to have accepted because they did not include costs and disbursements as discrete items. I see nothing about this case that justifies penalizing the plaintiff for failing to correctly guess the jury would not accept her claims. I conclude that awarding double costs amount to imposing a heavy penalty on a plaintiff that was forced to endure the unpredictability of a jury trial. I find the day before trial, she had reasonable basis to pursue her case at trial. The defendants’ offers were devoid of discrete recognition of costs and, in my view, that was a disincentive to settle.
 The defendants’ application for double costs is dismissed
Sensible reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, confirming that the standard of proof does not change for a tort claim based on subjective soft tissue injuries.
In last week’s case (Rabiee v. Rendleman) the Plaintiff was involved in a 2008 rear end collision. The Defendant admitted fault but disputed injury pointing in part to the fact that the collision was minor. In accepting the Plaintiff sustained soft tissue injuries and assessing non-pecuniary damages at $40,000 Madam Justice Sharma provided the following comments about the standard of proof in low velocity impact prosecutions:  Given the findings of fact above, I am satisfied that the plaintiff has established on a balance of probabilities that the accident caused soft tissue injuries. The accident was clearly “a cause” of the soft tissue injuries…
 The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock,  B.C.J. No. 31 (B.C.S.C.) that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”
 I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock,  B.C.J. No. 1490 (B.C.C.A.) clarified: “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”
 The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors…
71] Taking into account all of the cases and my conclusions about the evidence in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary damages.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.
In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions. The Defendants were found liable for each of these. The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management. In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:
 Based on all of the above, I make the following findings on the balance of probabilities:
a. Mr. Shinzay continues to suffer pain that affects, but does not disable him;
b. Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;
c. Mr. Shinzay needs to follow a conditioning program which will improve his pain management;
d. Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;
e. The accidents caused Mr. Shinzay to suffer soft tissue injuries; and
f. The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.
 As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.
 Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..
 In these circumstances, I find $75,000 to be an appropriate award.
Reasons for judgment were released today by the BC Supreme Court addressing whether a witness who has a good understanding of English should have their credibility negatively assessed where they choose to testify trough an interpreter. In short, the Court held that this factor alone is irrelevant in assessing credibility.
In today’s case (Kim v. Khaw) the Plaintiff was injured in a vehicle collision that the Defendant was responsible for. The Plaintiff sued for damages and testified using a translator. The Plaintiff had a good understanding of English and as a result the Defendant argued the Plaintiff’s credibility should be negatively impacted by using the buffer provided by a translator. Madam Justice Sharma disagreed and in doing so provided the following reasons:
 Mr. Kim’s comprehension of English was good; therefore, does his decision to use an interpreter impact his credibility?
 There is no doubt that hearing evidence through the filter of an interpreter can be challenging: Wang v. Hu, 2003 BCSC 552 at para. 24; R. v. A.F., 2010 ONSC 5824 at para. 87. The court must be alive to the fact that the impact or nuance of interpreted testimony may be “lost in translation”, especially during cross-examination. For example, inconsistencies in explanations or expressions may be the inevitable result of there being no exact translation, or perhaps many translations, for an English word, phrase or concept in the foreign language.
 It is unfortunate, but inescapable, that hearing evidence through an interpreter may make it more difficult to consider and weigh that evidence. Difficulty, however, cannot be a bar to fairness; fairness is the measure against which the court must gauge whether the fact that evidence was given via an interpreter is relevant to or affects the credibility of that witness’ testimony.
 Mr. Kim felt more comfortable testifying in Korean. A major issue in this case is whether his mental status has been detrimentally affected by the Accident. This required him to discuss and reveal highly personal and emotional information, including his intimate relationship with his wife and his interactions with his children. He testified about matters that all doctors accepted he felt enormous shame and guilt about. I find it reasonable and understandable that he would choose to testify in his native language even if he does understand English well. This is especially true because he is not just a witness, but a party, in the case.
 The comfort of one’s native language, even when English is understood, is surely a factor for many witnesses who testify via an interpreter. That comfort would be seriously eroded if, without reasonable justification, a court were to take into account a witness’ preference for interpretation when weighing their evidence or assessing their credibility. It is my view that the use of an interpreter, on its own, is irrelevant to the issue of credibility. To find otherwise could unfairly prejudice participants in the trial process who used interpreters and could undermine public confidence in the trial process. In my view, there must be some evidence, or a reasonable inference that can be drawn from evidence, that the witness’ use of the interpreter was not necessary for them to fairly participate in the trial, but rather was a deliberate intent to gain some advantage: Mee Hoi Bros. Co. v. Borving Investments (Canada) Ltd., 2014 BCSC 1710 at para. 13 and 21 [Borving].
 In this case, Mr. Kim demonstrated that he does understand spoken and written English, and that he speaks English (although, from the very little I heard, with a heavy accent and somewhat haltingly). I understood the defendants to rely on Mr. Kim’s facility with English as another reason the court should not rely on his testimony. I find that to be irrelevant to the weight I attach to his evidence. In this case, the defendants’ counsel was able to conduct a vigorous and effective cross-examination of the plaintiff despite the interpretation.
 I do not discount the possibility that counsel may want to argue that the use of an interpreter, where one was not absolutely necessary, caused the trial to be longer which should be recognized in a costs award, but that issue is entirely different from credibility.
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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