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Tag: Mr. Justice Butler

$85,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injuries with Anxiety and Depression

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Ponsart v. Kong) the Plaintiff was involved in 2 collisions for which the Defendants were responsible.  These resulted in chronic soft tissue injuries to her neck and back with some psychological overlay.  In assessing non-pecuniary damages at $85,000 Mr. Justice Butler made the following findings and provided these reasons:

[76]         With these conclusions in mind, I make the following specific findings about the nature and extent of Ms. Ponsart’s injuries and symptoms:

·       She suffered a Grade II strain of her neck and low back in the First Accident. At the time of the First Accident, she had recovered from the injuries suffered in the May 2011 accident. The pain in her thoracic spine around that time was primarily caused by breast enlargement that was alleviated by the surgery in 2013.

·       The First Accident also caused the plaintiff to experience significant anxiety and depression, which affected her ability to take part in work and leisure activities. Nevertheless, as her physical condition improved, she was able to take part in many activities. By 2013, she was doing strenuous training. While she functioned marginally at times, that was primarily a result of her psychological condition.

·       Her anxious nature predisposed her to experiencing anxiety and depression. However, there is no evidence suggesting that she would have experienced the emotional problems she faced without the First Accident.

·       The plaintiff was functioning reasonably well before the Second Accident, although she was still experiencing some neck and low back pain. Her emotional condition had improved from the summer of 2014.

·       The Second Accident aggravated the plaintiff’s soft tissue strain to the cervical and lumbar spine. The injury was not as serious as what she experienced in the First Accident, although she was partially disabled for two to three months. The Second Accident had a significant impact on her emotional well-being. It caused additional anxiety and depression, although not to the extent of a major depressive disorder.

·       By the time of the Third Accident, the plaintiff’s physical condition was manageable, although she was still experiencing minor neck and low back pain, which by that time had become chronic.

·       The Third Accident caused a further aggravation of the injuries from the two prior accidents. It had a significant impact on her, both physically and emotionally because of her increased headaches. She now suffers from chronic headaches including severe migraines. The exacerbation of her neck and back symptoms lasted for approximately six months before returning to the pre-accident status.

·       As a result of the accidents, the plaintiff is left with a minor degree of chronic neck and low back pain. She is able to manage all tasks of daily living and most of her recreational pursuits most of the time. However, because of the accidents, she is more susceptible to anxiety and depression than she was before the First Accident.

·       As will be evident from these conclusions, much of the plaintiff’s suffering was emotional. As I have described, there is no doubt it was caused by the First and Second Accidents.

[84]         As I have described, a major component of the plaintiff’s injury is emotional or mental. As the Supreme Court of Canada recently affirmed in Saadati v. Moorhead, 2017 SCC 28, such losses are compensable where, quoting Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, they are “’serious and prolonged and rise above the ordinary annoyances, anxieties and fears’ that come with living in civil society”. The plaintiff has clearly met the burden of proving serious and prolonged disturbance to her emotional well-being arising from the injuries in the First and Second Accidents.

[85]         When I consider the facts I have found about the nature and extent of the plaintiff’s injuries, I conclude that a fair award for non-pecuniary loss is $85,000. This award does not include any amount for two discrete injuries or symptoms: the exacerbation of the plaintiff’s neck and shoulder pain that occurred in the six-month period after the Third Accident; and the headache symptoms that the plaintiff suffered after that accident.

$50,000 Non-Pecuniary Assessment for Shoulder Tendinopathy

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a shoulder injury caused by a vehicle collision.
In today’s case (Rogers v. Situ) the Plaintiff was involved in a 2011 rear end collision the Defendant admitted fault for.  The Plaintiff sustained an onset of symptoms related to shoulder tendinopathy as a result of the collision.  In assessing non-pecuniary damages at $50,000 Mr. Justice Butler provided the following reasons:
[21]         I find that the accident did trigger the onset of his symptoms associated with the tendinopathy. There is no basis on which I could conclude that it would have become symptomatic without the accident. As a result, I conclude that the accident caused the injury and that there is no basis to reduce the award on the basis of the prior shoulder injury.

[39]         Dr. Ezekiel summarizes the course of the injury as follows:

…The accident resulted in the onset of pain in the patient’s left shoulder, which was subsequently found to be due to tendinopathy of the supraspinatus muscle. Mr. Rogers was treated initially with anti-inflammatories and physiotherapy but eventually underwent a surgical procedure to decompress the tendon. At the present time, Mr. Rogers has improved considerably but still finds he is unable to do some activities that are more physically demanding.

[40]         In summary, I find that the plaintiff suffered an injury to his left shoulder which has caused pain and has impacted his ability to carry on some of his recreational and daily activities. He will continue to suffer some pain and restriction in his activities. However, the impact of the shoulder injury is much less than the plaintiff contends. He sought little in the way of medical attention for the condition until the end of 2012. I conclude he was more concerned with his other medical difficulties; both the pre-existing chronic pain and the ruptured tendon and pulmonary embolism. His activities were impacted initially and will continue to be impacted by the shoulder injury but not to the extent he alleges.

[45]         I agree that the plaintiff’s pre-accident status is relevant. He was suffering from chronic pain which restricted his activities. His evidence regarding the level of his activities prior to the accident was misleading. He made no mention of his other painful conditions. When I take those into account, along with the other unrelated medical conditions that have impacted his enjoyment of life since the accident, I conclude that a fair award for non-pecuniary damages is $50,000.

$65,000 Non-Pecuniary Assessment for Lingering but Non Disabling Soft Tissue Injury

In the latest addition to this site’s soft tissue injury assessment database, reasons for judgement were released today by the BC Supreme Court, assessing damages for a lingering but not disabling neck and upper back soft tissue injury.
In today’s case (Dhaliwal v. Randhawa) the Plaintiff was involved in a 2011 collision that the Defendant was found wholly responsible for.  The Plaintiff suffered an upper back and neck soft tissue injury that, while somewhat improved, continued to cause persistent symptoms to the time of trial.  Despite the long lasting lingering symptoms the injuries were not expected to be disabling.  In assessing non-pecuniary damages at $65,000 Mr. Justice Butler provided the following reasons:
[48]         When I examine all of the evidence, I reach the following conclusions about the nature and extent of Mr. Dhaliwal’s injuries and symptoms. He suffered a soft tissue injury to his upper back and the base of his neck. He may have suffered a minor soft tissue injury to his lower back but this was resolved within six weeks of the accident. The upper back, shoulder and neck symptoms persisted for more than two years. However, by September 2013, the symptoms were significantly less serious. While the symptoms have persisted up to the present time, they do not inhibit his ability to work or carry on with activities of daily life…
[58]         When I apply the considerations to the facts I have found, I conclude that a fair award in all of the circumstances of this case is $65,000. In arriving at that assessment, it is particularly significant that Mr. Dhaliwal is young and will suffer continuing, but manageable and non-disabling discomfort in his neck, shoulders and upper back. In other words, his discomfort may continue for a long time. At the same time, the more severe neck, shoulder and upper back pain was of limited duration. Further, any lower back pain after 2011 was not related to the accident. In addition, outside the 6 to 12 months following the accident, he has not experienced a significant impairment in his lifestyle and daily activities…

[61]         Of the cases the parties cite, Jiwani is the most similar to Mr. Dhaliwal’s circumstances. There the court found that the plaintiff suffered from back pain which had persisted for four-and-a-half years and was likely to continue. At para. 46, Sigurdson J. set out his conclusions which are similar in important respects to those which I have arrived at here:

… While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[62]         In a similar vein, I have concluded that Mr. Dhaliwal still suffers upper back pain but I have not accepted that the pain is as serious as he contends or that the low back pain was caused by the accident. As in Jiwani, Mr. Dhaliwal continues to suffer pain which is of “a type that causes modest discomfort”. He will continue to be able to take part in all of his recreational, home and work activities. He will need to have occasional manipulations or massages to assist with management of his symptoms.

$45,000 Non-Pecuniary Assessment for Persistent but Not Disabling Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for persistent moderate soft tissue injuries.
In today’s case (Matharu v. Gill) the Plaintiff was involved in a collision which the Defendant was found liable for.  She suffered moderate soft tissue injuries to her neck and shoulder which persisted to the time of trial and were expected to linger for sometime after although the ultimate prognosis was generally favorable.  In assessing non-pecuniary damages at $45,000 Mr. Justice Butler provided the following reasons:

[30]         When I consider the medical opinions and the evidence regarding the nature and duration of Ms. Matharu’s symptoms, I arrive at the following conclusions:

a)       Ms. Matharu suffered a moderate soft tissue strain to her neck and shoulders. She also suffered a mild low back strain.

b)       Ms. Matharu’s pre-existing conditions have affected the length of time it has taken and will take for her to recover from the injuries. In particular, the inflammatory polyarthropathy made her more susceptible to persistent soft tissue pain. Her mild anxiety condition has also had some impact on the persistence of her symptoms.

c)       In spite of persistent pain for three years, Ms. Matharu has continued with most activities at home and at work. She has managed to do this with the assistance of family, friends and work colleagues. She can fairly be described as somewhat stoic.

d)       Ms. Matharu did not follow Dr. Sanghera’s recommendations to continue with physiotherapy and active rehabilitation for about 12 months. Similarly, prior to the accident, she did not take part in recommended regular exercise. Her failure to do so for a period of time after the accident has likely resulted in some prolongation of symptoms. However, it is unlikely her symptoms would have resolved by trial, even if she had continued with the recommended therapy.

f)        Ms. Matharu continues to experience symptoms related to the injuries suffered in the accident. The symptoms will continue to resolve and there is a good chance they will fully resolve within the next one to two years.

[37]         When I examine the circumstances in this case and the factors highlighted in Stapley, the important factors here are the length of time Ms. Matharu has suffered ongoing soft tissue pain, the extent of that pain, and the impact it has had on her ongoing activities. In that regard, I accept that she is stoic and has continued to do most things. However, I also find that she was frail and somewhat limited in what she could do before the accident. Accordingly, the injuries have imposed a limitation on her activities and lifestyle which has impacted her more than such injuries would have done to someone who was more vigorous and did not suffer from inflammatory polyarthropathy.

[38]         In all of the circumstances, I conclude that a fair award for non-pecuniary damages is $45,000. However, that does not end the matter. Ms. Matharu did not follow Dr. Sanghera’s recommendations and I have accepted his evidence that had she done so she would likely have had some improvement in her symptoms. Accordingly, I find the defendant has satisfied the onus to prove that Ms. Matharu failed to mitigate her loss. I would accordingly reduce the non-pecuniary damage award by 10%.

$40,000 Non-Pecuniary Assessment for Bicep Tendon and Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a bicep tendon injury along with some soft tissue damage.
In today’s case (Pavan v. Guolo) the Plaintiff was involved in a 2010 T-bone collision caused by the Defendant.  The Plaintiff suffered a strain to the tendons in his right bicep along with soft tissue injuries to his shoulder and low back.  The Plaintiff missed little time from work but some of his symptoms persisted at the time of trial albeit not significantly.  In assessing non-pecuniary damages at $40,000 Mr. Justice Butler provided the following reasons:

[21]         Counsel for both parties provided detailed written argument to explain why I should accept their positions regarding the nature of the plaintiff’s injuries and the duration of the symptoms. I thank them for the thorough and detailed argument. I much prefer the defendants’ approach to the assessment of causation and analysis of the evidence. In other words, it is preferable to consider the three symptomatic areas separately and assess the development of symptoms in light of all of the evidence including the limited medical evidence. When I do that, I make the following findings of fact regarding injuries and the duration of symptoms:

1)       Right Arm:  The plaintiff suffered a strain to tendons in his right biceps. That injury has improved significantly over time, but has not resolved and will likely not do so. However, it is not disabling and does not significantly impact the plaintiff’s activities. It still causes the plaintiff momentary discomfort when he performs certain activities.

2)       Right Shoulder:  The plaintiff suffered a grade 2 strain to his neck, upper back and right shoulder. This was the most serious injury sustained in the accident. That injury substantially resolved within about 18 months of the accident. The accident left the shoulder susceptible to what the plaintiff calls flare-ups or aggravations. The plaintiff does not have ongoing persistent pain or discomfort. His occasional flare-ups do not last for long and are not disabling.

3)       Low Back:  The plaintiff suffered a very mild low back strain in the accident. That injury resolved in a few months. The incidents of low back pain suffered by the plaintiff since that time are unrelated to the injuries suffered in the accident.

[45]         Of course, the appropriate award for non-pecuniary loss must take into account, all of the particular circumstances of the plaintiff before the court. The cases cited by counsel were helpful as a guide. I do not propose to examine and compare those cases with the facts I have found here. I will note that the cases relied on by the defendants involved circumstances that are somewhat closer to the facts I have found with regard to the nature of the soft tissue injuries with an exception. I have concluded that the plaintiff has ongoing difficulties with his right arm, albeit relatively minor, and that his right shoulder can still have flare-ups, which are contributed to by the injuries suffered in the accident. Further, the cases cited by the defendants are somewhat dated.

[46]         When I consider all of the relevant factors in light of the facts I have found, I conclude that a fair award for non-pecuniary damages is $40,000.

Excessive Delay Strips Defendant of Double Costs Entitlement

In what I believe is the first case addressing this factor, reasons for judgment were released today by the BC Supreme Court, Kelowna Registry, looking to the timeliness of  a costs application as a factor in deciding costs consequences following a trial with a formal settlement offer in place.
In this week’s case (Bay v. Pasieka) the Plaintiff was involved in a collision and sued the Defendant for damages.  The case had “frailties” and prior to trial the Defendant made a nominal formal settlement offer of $1.  The Plaintiff rejected this offer and proceeded to trial.  A jury dismissed the claim.  The Defendant sought double costs and Mr. Justice Butler would have awarded these but did not due to excessive delay in bringing the Defendant’s application.  In reaching this conclusion the Court provided the following reasons:
 [1]             On January 27, 2010, following a two-day trial, the action of the plaintiff, Laurie-Ann Bay, against the defendant, Todd Pasieka, was dismissed. I ordered that the issue of costs be adjourned with liberty to the parties to apply to the court if an agreement could not be reached. Three-and-a-half years after the trial, the defendant now applies for costs. The defendant seeks costs at Scale B and double costs from November 14, 2006, the date an offer to settle was made, to the present. The plaintiff says that each party should bear their own costs…
[30]         While some delay is understandable, the delay in this case far exceeded a reasonable limit. Excessive delay is, of course, contrary to the object of the Rules as set out in Rule 1-3(1): to secure “the just, speedy, and inexpensive determination of every proceeding on its merits.” By waiting so long to deal with the issue of costs, the defendant undoubtedly increased the cost of dealing with the issue for both parties and delayed the final resolution by years. It would be wrong to accept the delay without imposing any consequence on the defendant. It is in the interests of the court and of the parties to resolve disputes as soon as they arise to promote efficient use of court time. The inordinate delay in bringing this application is not acceptable.
[31]         In Xerox, Finch J. found that a party alleging prejudice has the evidentiary burden of showing that prejudice. While the evidence presented does not establish significant prejudice, the plaintiff has established that the defendant’s delay in pursuing a costs award caused her and her counsel difficulty in responding to the application in as fulsome a manner as she would have been able to had the defendant sought costs soon after trial. Similarly, it is much more difficult for the court to consider the costs claim so long after the trial has concluded.
[32]         I find that the defendant has not provided a suitable reason for the inordinate delay in bringing this application. The plaintiff has been prejudiced as a result of this delay and the court has been inconvenienced.
[33]         Without the delay in the application, I would have found that the defendant was entitled to double costs from the date of Mr. Pasieka’s examination for discovery. The plaintiff should have known from that time forward her claim was weak and should have accepted the offer. However, given the inordinate delay, I decline to make that order. Instead, I order that the defendant is entitled to costs at Scale B throughout.

$50,000 Non-Pecuniary Damages for Left Sided SI Joint Injury

Reasons for Judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury following a motor vehicle collision.
In last week’s case (Connolly v. Cowie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The 35 year old plaintiff suffered from chronic low back pain following the collision.  Ultimately the injury was diagnosed as an “indiscreet pain syndrome” affecting the plaintiff’s left sacroiliac region.  In assessing non-pecuniary damages at $50,000 Mr. Justice Butler provided the following reasons:
[41] In summary, I conclude that Ms. Connolly suffered a significant low back strain as a result of the accident.  The accident has caused injury to the myofascial tissues in her left sacroiliac region.  The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy.  She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform.  She is still able to do most household tasks, but it is likely she will continue to experience pain with activities.  It is unlikely that the pain symptoms will resolve…

[45] Here, Ms. Connolly is unable to continue with long distance running.  She does not take medications like Ms. Dutchak, but has persisted with more restricted activities.  In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors.  Her inability to continue with that is a significant loss to her.  She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor.  She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people.  She is no longer able to do that and this is a significant loss.

[46] In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future.  Considering all of the circumstances, I find that $50,000 is an appropriate award for non-pecuniary loss.

To access my archived posts of other recent BC Supreme Court decisions assessing damages for SI Joint Injuries in ICBC Claims you can click here.

$95,000 Non-Pecuniary Damages For Disc Protrusions Requiring Discectomy; Dr. Dommisse Criticized

(Image via Wikipedia)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries caused by a motor vehicle collision.
In last week’s case (Ng v. Sarkaria) the Plaintiff was injured in a 2007 collision.  The Defendant admitted fault for the crash.  The 31 year old Plaintiff suffered “a large focal disc protrusion at L4-5 and a less significant protrusion at L5-S1“.  As a result the Plaintiff went on to have a partial discectomy.
In assessing non-pecuniary damages at $95,000 Mr. Justice Butler provided the following reasons:
[43] In summary, Mr. Ng has been left with a limitation in the amount of activities he can do.  He has also suffered some restriction in the nature of the activities he can do because he is focused on staying healthy.  He is determined to continue his work as a TFR.  He is not disabled by pain and there is no suggestion that he suffers from chronic pain.  Rather, he has episodic pain when he overexerts himself…

[46] I have found the decisions referred to by the plaintiff to be helpful to my decision.  Of course, each assessment depends on the unique facts of the case.  Here, Mr. Ng’s injury was significant; however, he has had a very positive result from the surgery.  He continues to be able to do all of the activities of his job.  His income has increased to a level greater than it was before the accident.  He must be careful to avoid excessive stress on his back and must carefully balance his work and home life.  However, when I compare his situation to that of the plaintiffs in the cases he relies upon, he is in a better position because he does not experience ongoing chronic pain and is able to continue to carry out most of the activities he could before the accident.  However, I must also take into account the possibility that he will not be able to continue to perform at his current level as a result of the injuries suffered in the accident.  There is a possibility that his pain and restriction of activities will increase in the future.

[47] When I take all of these factors into account, I conclude that the appropriate award for non-pecuniary damages is $95,000.

Prior to reaching this decision the Court heard from competing medical evidence about the connection between the collision to the disc protrusions.  The physician retained by the defence (Dr. Dommisse) provided evidence minimizing this connection arguing the injury was perhaps more likely connected to a work related incident.  In rejecting this opinion Mr. Justice Butler provided the following criticism:
[30] The defence was critical of Dr. Aitken’s alleged failure to fully inquire into the work activities undertaken by Mr. Ng after he went back to work.  However, I am of the view that it is Dr. Dommisse who can be criticized for failing to back up his opinion by pointing to evidence that would connect the Herniations to a particular injury or incident at work.  All of the doctors were aware in general terms of the nature of Mr. Ng’s work.  They all agreed that it is possible for such work to cause a tortional injury to the spine.  However, there was no evidence that Mr. Ng suffered such an injury or insult at work between June 2008 and November 2008.  Indeed, he deliberately avoided the more onerous work tasks including those jobs requiring the use of the large ladder.  He does not recall using the ladder in that timeframe.  During much of that period he was off work, on light duties or avoiding heavy tasks.  The evidence established that there was only one significant injury or insult to Mr. Ng’s spine:  the injury that was suffered in the accident.

BC Sexual Abuse Civil Cases and the Law of "Indivisible Injury"

As previously discussed, the law of damages in BC has developed as follows with respect to indivisible injury compensation:
[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

This principle becomes particularly important with respect to civil sexual abuse claims.  The sad reality is that many abused people are repeat victims with a number of different wrongdoers taking advantage of them.  If this is the case, and if the overall harm caused by the abuse is “indivisible” then the victim can collect their damages for the whole of the indivisible injury from any one of their perpetrators.  This principle was demonstrated in reasons for judgment released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Corfield v. Shaw) the Plaintiff was the victim of childhood sexual abuse at the hands of her stepfather.  The abuse was “egregious and prolonged“.  Later she was the victim of sexual abuse at work.  The latter abuse was of a less severe character.  She sued for damages as a result of the workplace abuse.  The Defendant was ultimately found liable.
The Defendant argued that the damages should be modest because the Plaintiff “was still experiencing emotional and psychological difficulties from the Childhood abuse” and that these consequences “would have continued thereafter even without Mr. Shaw’s wrongful actions“.  Mr. Justice Butler rejected this argument and assessed damages on an indivisible basis.  In doing so the Court provided the following reasons:

[101] There is no question that the nature of the emotional and psychological injuries she suffered as a result of the Childhood Abuse is similar to, if not the same as, what she has experienced since the Assaults.  Any attempt to divide those injuries into causes as between the two tortfeasors would be artificial.  There was no evidence proffered which would allow me to conclude that some of the symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were caused solely by the Childhood Abuse.  Accordingly, I conclude that all of Ms. Corfield’s emotional and psychological difficulties since 2005 were caused or contributed to by the Assaults.  In other words, the injuries she has suffered from since 2005 are indivisible from those injuries suffered from the Childhood Abuse.

[102] In reaching that conclusion, I am not suggesting that the Assaults were the only cause of her injuries, just that her “damage and loss has been caused by the fault of two or more persons”, one of whom is Mr. Shaw.  As a result, in accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries suffered since the Assaults, and he is responsible for the full cost of loss and damage suffered since the Assaults subject to consideration of the crumbling skull principle.

[103] The difference between a thin skull and a crumbling skull is described in Athey at paras. 34 and 35:

… The “crumbling skull” doctrine is an awkward label for a fairly simple idea.  It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.

[104] One aspect of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more vulnerable to experience a more intense emotional affect from stressful events”.  In other words, she was fragile and susceptible to suffering emotional damage.  There is no question that this condition falls within the “crumbling skull” category.  Ms. Corfield continues to have that susceptibility and Mr. Shaw does not have to compensate her for continuing vulnerability.

[105] However, the defendants also argue that Ms. Corfield was still experiencing emotional and psychological difficulties from the Childhood Abuse before she was assaulted by Mr. Shaw.  They say the symptoms she suffered from included anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms.  The evidence of Ms. Corfield’s mother provides some support for this position.  Ms. Corfield herself said that she “felt herself fairly recovered” from the Childhood Abuse.  I take this to mean that she was doing reasonably well but had not fully recovered.  In cross-examination she admitted that her doctor recommended she attend counselling in 2003 and 2004.  This confirms that in the two years before she started working at Baker Industries she was experiencing emotional difficulties.  She also admitted to continuing intimacy problems arising from the Childhood Abuse…

[116] In these circumstances, an appropriate award for non-pecuniary damages including the aggravating circumstances is $70,000.  This must be reduced to take into account Ms. Corfield’s pre-existing condition.  A deduction of 15% results in an assessment of $59,500.  I will round that up and award the sum of $60,000 for non-pecuniary damages.

BC Rules of Court Update: The Adverse Witness Rule

The Rules of Court permit parties to a lawsuit to force opposing parties to take the stand during the course of a lawsuit.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this power under the New BC Supreme Court Civil Rules.
In today’s case (Dawson v. Tolko) the Plaintiffs were current and former employees of Tolko Industries.   Tolko Industries amended a pension plan it offered it’s employees.  During the course of this occurring another Defendant in the lawsuit, Mr. Mercier, assisted and advised Tolko Industries on issues relating to the offer made to the employees to change from a defined benefit pension plan to a defined contribution plan.
The Plaintiff’s sued Tolko and Mercier alleging that they did not act in good faith during this period.  Prior to trial the Plaintiffs lawyer examined Mr. Mercier extensively.  During the course of the trial the Plaintiffs wished to put Mr. Mercier on the stand.
The Defendant objected arguing that this was not necessary as he would take the stand in the defence and could be cross-examined at that time and further that the Plaintiff could read his discovery evidence in at trial.
Mr. Justice Butler rejected the Defendant’s argument and ordered that he take the stand.  In doing so the Court canvassed the power of litigants to put adverse parties on the stand in the BC Supreme Court.  In doing so the Court found that authorities developed under the former Rules remain helpful.  Specifically Mr. Justice Butler held as follows:

[6]             The Rules provide that the plaintiff may call an adverse party as a witness for cross-examination as part of the plaintiff’s case.  This may be done either by delivering the notice (as was done in this case), issuing a subpoena, or calling the adverse party as a witness if he or she is in the courtroom.

[7]             In my decision in Canadian Bedding Company Ltd. v. Western Sleep Products Ltd., 2008 BCSC 1444, I considered an application to set aside a notice delivered under the provisions in the former Rules in circumstances that were very similar to the circumstances in this case.  I dismissed the defendant’s application to set aside the notice.  In doing so, I examined the three different ways in which an adverse party could be called as a witness in the plaintiff’s case and the differences in the provisions for setting aside the notice or subpoena.  The provisions in the current Rules are, with one exception, the same and so my analysis is relevant to the current Rules…

[16]         I agree that the natural unfolding of the narrative can be impacted by use of the adverse party witness rule and that the use of the rule may unnecessarily prolong the trial.  However, I do not agree that the adverse party witness rule was intended to be limited to situations where the evidence sought to be elicited cannot be satisfactorily tendered in any other way.  The use of an adverse party witness may, in certain circumstances, be an effective way to prove a party’s case.  Counsel should not be deprived of that option when the language in the adverse party witness rule does not contain that limitation.

[17]         I have arrived at this conclusion on the basis of my analysis of the former Rules set out in Canadian Bedding.  In my view, the differences in the discretion given to a trial judge depending on how the adverse party witness is called to be a witness are important and cannot be ignored.

[18]         The Rules establish a hierarchy of discretionary considerations depending on how the adverse party witness is compelled to testify.  When a notice has been properly served pursuant to Rule 12-5(21), the witness and counsel have ample time to prepare for the cross-examination and design a trial strategy to deal with the fact that the defendant will be an adverse party witness.  Accordingly, the court is given a limited jurisdiction to set aside the notice.  It is only where the “evidence of the person is unnecessary” that the court can set aside the notice.  I cannot read Rule 12-5(23)(b) as equivalent to Rule 12-5(39), which states that a subpoena may be set aside where “compliance with it is unnecessary.”  The wording of Rule 12-5(39) must encompass a broader range of considerations including a consideration of the steps already taken in the case and whether compliance with the subpoena is necessary for the proper conduct of the trial.

[19]         Further, as I noted in Canadian Bedding, the discretion granted to the court must be exercised with restraint.  In De Sousa v. Kuntz (1988), 24 B.C.L.R. (2d) 206 (C.A.), Wallace J.A. cautioned that it was only in a clear case that a judge should exercise his discretion to set aside a subpoena on the ground of necessity.  He emphasized, at 214, the need for a judge to be acutely aware that if he sets aside a subpoena:

… he is substituting his view for that of counsel as to the need to subpoena a certain witness and that he will seldom have as complete an appreciation as counsel does of the benefits – both tactical and substantive – that a litigant may derive from calling a certain witness.

That caution applies with equal force in relation to the adverse party witness rules.  If plaintiff’s counsel decides to utilize the adverse party witness rule in order to satisfy the onus of proof borne by the plaintiff, the court should be reluctant to interfere.

[20]         In arriving at his conclusion in Strother, I also note that Lowry J.A. specifically stated at para. 43 that he intended “no imposition of any procedural limitation.”  If I were to accede to Mr. Mercier’s interpretation of the adverse party witness rule, it would add a gloss that does not appear in the current Rules.  It would impose a procedural limitation which does not appear in the adverse party witness rule.

[21]         Mr. Mercier cannot show that his evidence is “unnecessary”.  Mr. Poulus’s undertaking to call him as a witness and the fact of the extensive examination for discovery is not relevant to that consideration.  Accordingly, I decline to set aside the notice pursuant to Rule 12-5(23)(b).

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