Tag: Mr. Justice Barrow

Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

Driver Liable for Collision After He "Dozed Off" at the Wheel

Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, assessing fault for a collision where a motorist lost consciousness while behind the wheel.
In this week’s case (Holt v. Rother) the Defendant motorist lost consciousness while driving his vehicle.  His vehicle veered across the oncoming lane and onto the southwest shoulder where he struck and seriously injured the Plaintiff pedestrian.
The Defendant argued he was not at fault suggesting that an “unexpected and unforeseeable medical condition” caused him to lose consciousness.  Mr. Justice Barrow rejected this explanation finding it was more likely than not that the Defendant simply ‘dozed off’.  In finding the Defendant fully at fault Mr. Justice Barrow provided the following reasons:
[34]         The issue that remains is whether the defendant has rebutted the inference of negligence that arises from the proven manner of driving. He points out that it is impossible to prove what may have caused him to lose consciousness, if that is what happened, and he is not required to do that. It seems to me that it is at least as likely that Mr. Rother dozed off just before he struck the plaintiff as it is that he lost consciousness for some other reason. In fact, I think this is the more likely explanation. He was 76 years old. He had been out in the hot sun all afternoon. He had been intermittently swimming. He had driven 20 or 30 minutes on the highway in the late afternoon. I agree with Dr. Cameron that a syncopal episode, while possible, is not a likely explanation for what happened. Further, I agree that vasovagal fainting, while more likely than a syncopal episode, is less likely than simply dozing off.
[35]         In reaching this conclusion, I have considered the actual driving evidence. It is not necessary to conclude that Mr. Rother was attempting to flee the scene after he struck the plaintiff. I have no doubt that had he been aware he hit the plaintiff, he would have stopped immediately. I think it likely that he was not aware he struck the plaintiff and was not attempting to drive away when he hit the lamp standard. I think it likely that he was aroused from his momentary lapse of consciousness, and before he regained his wits, he struck the lamp standard and his vehicle rolled over.
[36]         As noted by Evans J. in Boomer v. Penn, “[t]he evidence must disclose the probability that the driver’s acts and omissions were not conscious acts of his volition”. Further, he must establish that if he suffered a lapse in consciousness, that it was not reasonably foreseeable. Dr. Francis said, and common experience supports, that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. While Mr. Rother did not say that he experienced such symptoms he is, as noted, an unreliable historian, and his memory of events shortly before the accident is not complete.
[37]         I am not satisfied that Mr. Rother has discharged the onus he bears to establish that his driving, on the day in question, was not volitional or, if it was not volitional, that it was the result of something that was not reasonably foreseeable.

Fast Track Costs Apply Despite 4 Day Trial

As previously discussed, Rule 15 is applicable to BC Supreme Court injury trials with a quantum of less than $100,000 or to trials that can be completed in three days or less.   This week reasons for judgement were published by the BC Supreme Court, Vernon Registry, addressing what costs flow following a Rule 15 trial which exceeds three days.
In this week’s case (Travelbea v. Henrie) the Plaintiff was injured in a collision.  Following a four day trial which was prosecuted under Rule 15 damages of just over $68,000 and costs were awarded.  The Plaintiff sought costs under the Tarriff and the Defendant argued that the capped costs of Rule 15 should apply.  Mr. Justice Barrow agreed with the Defendant and noted that there is nothing sufficient in a trial exceeding three days to depart from Rule 15 costs.  The court provided the following reasons:
6]             In general, the case was conducted in accordance with the parameters set by Rule 15-1. The plaintiff did not conduct an examination for discovery of the defendant. The defendant’s examination for discovery of the plaintiff was completed within two hours. There were no interlocutory applications by either party. The only substantive exception to the limitations imposed by the fast-track regime is that the trial spanned four days…
[10]         The only aspect of this case to which the plaintiff points by way of special circumstance is that the trial was set for four days and, in fact, took almost four days to be heard. I am not persuaded that the circumstance is sufficient to justify otherwise ordering. First, when the notice of trial was filed indicating that four days would be necessary, the plaintiff was content that the matter should remain in the fast-track regime. That is apparent by virtue of the endorsement on the notice and the fact that no application to the court or request to the defendant was made seeking to remove the case from the regime. Second, although the trial took more than three days, it took only marginally more, less than half a day.
[11]         I acknowledge the plaintiff’s submission that the case may have taken much longer had counsel not dealt with the matter so efficiently and co-operatively. To accede to that submission would be, in effect, to sanction a party for doing that which the Rules are intended to promote, namely, to conduct trials in an expedient and efficient way.
[12]         In the result, I am satisfied that the lump sum costs provided for in Rule 15 ought to be imposed in this case, and I order that the plaintiff is entitled to costs under Rule 15-1(15)(c) in the amount of $11,000.

Non-Pecuniary Assessments for Athletically Active Individuals Discussed


A common focus when assessing non-pecuniary damages deals with looking at recreational activities and how they have been curtailed as a result of physical injuries.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, addressing this in the context of lingering soft tissue injuries.
In last week’s case (Travelbea v. Henrie) the Plaintiff was injured in a 2008 collision.   Fault was admitted by the Defendant focussing the case on an assessment of damages.   The court found that the Plaintiff suffered a “mild to moderate soft tissue injury to her neck and upper back“.  Her symptoms remained “painful and limiting” at the time of trial and while there was room for further improvement the Court was satisfied that there would still be “residual pain and limitations“.
Prior to the crash the Plaintiff was very fit regularly training for and participating in endurance events.  The injuries had a “significant effect..(on the Plaintiff’s) reasonably demanding athletic endeavours“.  In assessing non-pecuniary damages at $50,000 Mr. Justice Barrow provided the following reasons addressing this loss:
[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.
[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth…
[54]         Taking all of the foregoing into account, and having regard to the non-exhaustive list of factors set out at paragraph 46 in Stapley v. Hejslet, I consider that an award of $50,000 is appropriate in this case. Included in this amount is $3,000 which I have determined is the appropriate compensation for the plaintiff’s lost capacity to perform housekeeping tasks.

Soft Tissue Injury Damages Round Up – The Kelowna Road Edition


As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements.  Sometimes, however, the volume of decisions coupled with time constraints makes this difficult.  After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.
In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted.    He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back.  His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment.  In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:
[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

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In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island.  Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

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(UPDATE March 19, 2014 – the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle.  The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)      the plaintiff’s “original position” immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

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In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained soft tissue injuries to his neck and back.   The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial.  In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.

$12,000 Non-Pecuniary Assessment For 7 month Whiplash Injury

Reasons for judgement were released last week by the BC Supreme Court, Penticton Registry, assessing damages for soft tissue injuries caused by a motor vehicle collision.
In last week’s case (Kingsfield v. Powers) the Plaintiff was involved in a 2007 collision in Oliver, BC.  Fault for the crash was disputed and ultimately the Court held that both parties were to blame with the Plaintiff shouldering 75% of the fault.
The Plaintiff suffered from chronic back pain although the Court did not accept this was caused by the collision.  The Court did, however, accept the Plaintiff suffered a whiplash injury which remained symptomatic for 7 months.  In assessing non-pecuniary damages at $12,000 (before the reduction for liability) Mr. Justice Barrow provided the following reasons:

[57] It follows from the foregoing that I am not satisfied that the on-going low back problems that Mr. Kingsfield is experiencing are causally related to the injuries he sustained in the motor vehicle accident.

[58] The next issue is an assessment of Mr. Kingsfield’s other injuries. They gave rise to fairly significant pain and discomfort for the first month after the accident. He was unable to do his job during that time, and when he did return to work it was to light duties for about six weeks. He continued to experience headaches until approximately mid-March and his neck was painful beyond that, perhaps until June 2008, some seven months after the accident. During this time his injuries did affect his life. He had difficulty sleeping, did not continue with his recreational activities, curling in particular, and generally felt poorly.

[59] The cases of Dolha v. Heft, 2011 BCSC 738; Morales v. Neilson, 2009 BCSC 1890; and De Leon v. Harold, 2010 BCSC 1802, are instructive in terms of quantum. All involved soft tissue injuries that resolved within a year. In Dolha the plaintiff’s significant injury was to her back and neck. Those injuries resolved within six to nine months following the accident. She was awarded $10,000 in non-pecuniary damages. In Morales the plaintiff suffered soft tissue injuries to his shoulder, neck and back. While those injuries limited his activities somewhat he was able to work seven days a week in a physically demanding job since the accident. His injuries were all resolved by a year post-accident. He was awarded $11,000 in non-pecuniary damages. In De Leon, the stoic plaintiff suffered soft tissue injuries which, due to her active participation, resolved substantially within two months of the accident and almost entirely within six months. She was awarded non-pecuniary damages of $12,000.

[60] I am of the view that an appropriate award of non-pecuniary damages in this case is $12,000. Mr. Kingsfield’s injuries significantly affected his life, including how he performed at work. Although he is entitled to compensation for past wage loss, I accept that the plaintiff takes pride in being able to do his job and his inability to do it was a source of significant anxiety while he awaited the resolution of his injuries.

Videotape Evidence "Of Some Assistance" in Impacting Personal Injury Claim


As previously discussed, video surveillance is a reality in personal injury litigation and surveillance depicting a Plaintiff acting inconsistently with their evidence can impact an assessment of damages.  Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, demonstrating surveillance evidence in action.
In last week’s case (Wilkinson v. Whitlock) the Plaintiff was injured in a 2007 collision in Vernon, BC.  The Defendant drove through a red light and was found fully at fault for the crash.  The Plaintiff suffered from back problems as a result of the collision.  In the course of trial the Plaintiff testified as to the effects of these injuries.  ICBC introduced video surveillance evidence which gave the impression “of an individual less limited than (the Plaintiff’s) evidence at trial and on discovery would lead one to conclude“. Mr. Justice Barrow provided the following reasons considering this evidence:

[16] There is reason to approach the plaintiff’s evidence with caution. She was defensive and evasive in cross-examination. I accept that anxiety may explain her defensive posture, but it does not account for her tendency not to answer questions directly. I do not, however, take much from these circumstances.

[17] As to the videotape evidence, it is of some assistance. The plaintiff was videotaped in January and February of 2008, May of 2009, and June and October of 2010. The plaintiff’s left hip and groin became, on her description, excruciatingly painful for no apparent reason when she was shopping. Although Ms. Wilkinson could not recall the date of this event, I suspect it was likely in the fall of 2008. Ms. Wilkinson testified that although the pain in her hip or groin varies, it often causes her “to waddle” when she walks as opposed to walking with a normal gait. On examination for discovery she agreed that it caused her to waddle most of the time. She said that it was a particular problem when she walked after driving.

[18] The January and February 2008 videotape evidence is of little assistance – the recordings are brief and do not show the plaintiff walking to any extent. The May 2009 videotape evidence is much more extensive. On May 19, 2009 the plaintiff was at a gas station purchasing flowers. To my eye, her gait appeared normal. On June 14, 2009 the plaintiff was videotaped while at a garden centre, and again her gait appeared normal. A year later, on June 15, 2010, there is videotape of her walking. There is no apparent limp but she does appear stiff and careful in the way she moves. On June 17, 2010 Ms. Wilkinson was videotaped walking to her car with a grocery cart full of groceries. She was captured loading the groceries into the hatchback of her vehicle. She did all of that without apparent limitation. On June 19 of that year she purchased a three or four foot tall house plant which she loaded and unloaded from her car, again without apparent limitation. Finally, there is a lengthy videotape of her on June 19, 2010 at a garden centre with Mr. Bains and her daughter. She is captured squatting down, standing up, and walking about the store without noticeable limitation. In summary, the videotape reveals some minor stiffness or limitation on some occasions. There are also occasions when she appeared to have little or no visible limitation. Generally, the impression left by the videotape evidence is of an individual less limited than Ms. Wilkinson’s evidence at trial and on discovery would lead one to conclude.

  • Mitigation of Damages

This case is also worth reviewing for the Court’s application of the mitigation principle.  Mr. Justice Barrow found that the Plaintiff was prescribed therapies that she failed to follow and these would have improved the symptoms.  The Court did not, however, reduce the Plaintiff’s damages finding that it was reasonable for her not to follow medical advise given her financial circumstances.    Mr. Justice Barrow provided the the following reasons:

[50] Returning to the principles set out in Janiak, and dealing with the second one first, I am satisfied on a balance of probabilities that continued physiotherapy at least during 2008 would have reduced some of the plaintiff’s symptoms and increased her functionality. Further, I am satisfied that the supervised exercise program that Mr. Cooper recommended would have yielded ongoing benefits. I reach this conclusion because Ms. Wilkinson did benefit from both Mr. Saunder’s and Mr. Cooper’s assistance. There is no reason to think those benefits would not have continued and perhaps provided further relief.

[51] The more difficult issue is whether it was unreasonable for the plaintiff to not have followed up on these therapies. She testified that it was largely due to a lack of financial resources. I accept her evidence in that regard. She was in the midst of renovations which were costly. In addition she had lost the assistance that Mr. Harrison was to have provided. The renovations were also time consuming and physically taxing. Further, she underwent a very difficult separation from Mr. Harrison which extracted both a financial and emotional toll. In all these circumstances I am not persuaded that the defendant has established that it was unreasonable for the plaintiff not to pursue a fitness regime more diligently than she did. Most of the impediments to the pursuit of such a program will be no longer exist once this trial is over. I will address the implications of that when dealing with the damages for future losses.

Affidavits and Exhibits: Take Care To Review the Whole of the Evidence


Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.
The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.
The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.

You're Fired! Changing Lawyers During a BC Supreme Court Lawsuit

(photo taken by  Gage Skidmore)
As previously discussed, sometimes lawyers and clients have irreparable differences and it’s necessary to move on either by getting a new lawyer or representing yourself.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing the different formal steps that could be taken under the Rules of Court  during an active lawsuit when a client and a lawyer have a parting of ways.
In this week’s case (Sandhu v. Household Reality Corporation Limited) the Plaintiffs and their lawyer had a falling out in the course of a lawsuit.  An application was brought to declare that the lawyers were no longer the “lawyers of record for the plaintiffs“.  In granting the application Mr. Justice Barrow provided the following concise and useful summary of the application of the Rules of Court when a fracture in the lawyer/client relationship occurs during an active BC Supreme Court lawsuit:

[7] The Rules of Court set out what amounts to a code governing how lawyers may cease to be the lawyer of record and their office the address for delivery in an action. There are essentially three ways that can be accomplished. The first and most common way is by the client filing a notice of intention to act in person or hiring another lawyer who files a notice of change of lawyer, the second is by the retiring lawyer filing a notice of intention to withdraw, and the third is by court order. The second method is intended to avoid an unnecessary court application in circumstances where, for one reason or another, the lawyer-client relationship has fractured but the client has not retained another lawyer or filed a notice of intention to act in person. It has the effect of putting the onus on the client to either object to the lawyer’s withdrawal or acquiesce in that result, in which case the address for delivery becomes the client’s address as set out in the notice.

[8] In addition to providing the method for changing lawyers, the rule operates such that the party whose lawyer is retiring will always have an address for delivery so that opposing parties, who have no interest in becoming embroiled in disputes that have nothing to do with them, are able to proceed with the litigation. That is the regime. It is set out in Rule 22-6. In the vast majority of cases, it works well. Mr. Merchant ignored this regime in this case.

$55,000 Non-Pecuniary Damages for Thoracic Outlet Syndrome


Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing quantum and liability following a motorcycle accident.
In this week’s case (Langley v. Heppner) the Plaintiff was injured in a 2003 BC collision.  The Plaintiff was operating a motorcycle and was following a vehicle operated by the Defendant.  Both vehicles were behind a slow moving van.  As the motorists approached a straight stretch of road both the Plaintiff and Defendant attempted to pass the van in the on-coming traffic lane.  They did so at almost the same time resulting in a violent crash catapulting the Plaintiff about 60 feet.
Mr. Justice Barrow held that both motorists were at fault with the Defendant bearing 80% of the blame.   Paragraphs 11-37 of the reasons for judgement are worth reviewing for the Courts discussion of liability.
The Plaintiff suffered various injuries.  Most of these went on to heal however he was left with persistent neck and shoulder pain.  Ultimately he was diagnosed with Thoracic Outlet Syndrome.  The limitations related to this were expected to continue to improve however there was a likelihood of long standing symptoms.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000.  In doing so the Court provided the following reasons:
[43] Turning to Mr. Langley’s injuries more generally, he suffered a number of bruises and abrasions which resolved unremarkably. His low back was sore, and although it remained sore and painful for a considerable time following the accident, it was asymptomatic by the time of the trial (six years post-accident). His most significant and persistent injury is to his right shoulder and the right side of his neck…
[51] I am satisfied on a balance of probabilities that the plaintiff has thoracic outlet syndrome and that it is a result of the motor vehicle accident…
[58] Mr. Langley’s right shoulder and right neck pain are the most significant consequence of the accident. I accept that he is always in some degree of discomfort in these areas. His level of discomfort increases when he becomes fatigued, but it is most seriously aggravated when he does any activity that involves lifting his right arm to or above shoulder level…
I am satisfied that Mr. Langley’s functional abilities will improve in some respects, although not to a significant degree…
[81] In view of all of the foregoing, an appropriate award for non?pecuniary damages is $55,000.

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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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