Tag: Mr. Justice Grist

$60,000 Non-Pecuniary Assessment For Chronic Pain At Pre-Existing Surgical Site

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.
In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision.  The Defendant admitted fault.  Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh.  He was left with a level of nerve damage at the surgical site.  Following the collision this pain was aggravated.  The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor.  In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons:
[3]             The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation.
[4]             Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life…
[22]         There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment.
[23]         The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own…
[49]         In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.

Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial


In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis.  This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision.  She sued for damages and proceeded to jury trial.  In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries.  Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert.  In doing so the Court provided the following reasons:
[5]  Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular  in the process of forming diagnosis and prognosis.  If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services…
[6]  The chiropractor will testify and will be subject to cross-examination…
[8]  The admissibility of an expert’s report is dealt with in R v. Marquard [1993] SCJ No. 119 (SCC).  At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own.
[9]  Here, I think the chiropractor does offer something towards this end.  Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice.  I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations.
[10]  On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.

Pre-Litigation Police Disclosure Request Denied

When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties.  If a formal lawsuit has not been started the  Court’s power to order disclosure becomes far more limited.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision.  The police investigated the matter.  The applicant applied for an order compelling disclosure of the police file.  Orders such as these are routinely granted by consent once formal lawsuits are underway.  In this case no lawsuit was commenced.  The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case.  In dismissing the application the Court provided the following reasons:

[4] Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5] These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.

[6] In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:

(a)        the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;

(b)        the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;

(c)        the defendant must be the only practicable source of the information;

(d)        there is no immunity from disclosure;

(e)        the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.

(f)         disclosure by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour granting the relief.

[7] In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:

6.         I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.

7.         If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.

8.         I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.

[8] Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”

[9] The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.

Disjunctive Nature of Rule 15 Confirmed by BC Supreme Court


Earlier this year Master Bouck found that Rule 15 applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less.  This reasoning was confirmed in reasons for judgement released this week by Mr. Justice Grist.
In this week’s case (Sandhu v. Roy) the Plaintiff was injured in two separate motor vehicle collisions.  He sued for damages and both actions were set for hearing, by consent, at the same time.  ICBC unilaterally put the cases into Rule 15 and set a trial for three days.  The Plaintiff applied to remove the case from Rule 15 arguing the case did not meet with its requirements given the value of the claims and the length of trial necessary.
ICBC argued that liability was “not seriously in dispute” and the trial can be completed in three days.  Mr. Justice Grist found with liability denied in the pleadings the case was not suitable for fast track litigation and ordered the matter removed from Rule 15 (unless ICBC formally admitted liability within 14 days).  In doing so the Court provided the following reasons confirming the Disjunctive nature of the fast track Rule:

[12] The defendants’ point that the prerequisites for a Fast Track Notice are listed disjunctively is sound. In Hemani, Master Bouck recognized the disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring more than three days to be set on Fast Track, and held that an action will not be removed from Fast Track on an application under 15-1(6) for that reason alone. Rule 15-1, however, presents something of a conundrum on the question of removal of an action from Fast Track as a result of an estimated trial length beyond three days. If the action proceeds to a Trial Management Conference, Rule 15-1(14) applies:

If trial will require more than 3 days

(14)      If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge

(a)        may adjourn the trial to a date to be fixed as if the action were not subject to this rule.

[13] In a case like this one, where only three days are set aside for trial and the circumstances indicate that significantly more days are required, should the matter proceed to a Trial Management Conference, the court would in most cases be forced to require a second trial date be set, and may often be called on to remove the action from the strictures of the Rule…

[16] I find merit in plaintiff’s application and would accede to the adjournment of the trial and removal of the action from the Fast Track Program. I consider, however, that the orders may not ultimately be necessary if liability for the two collisions were to be admitted. Defence counsel should be given the opportunity to re-assess his position once the effect of this decision is known. Accordingly, I will stipulate that the two orders will become effective should the liability issues not be settled within 14 days of these Reasons.

$200,000 Non-Pecuniary Damage Assessment For Chronic Physical and Psychological Injuries

Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.
In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000.  In arriving at this figure Mr. Justice Grist provided the following reasons:




[30] In this case, the physical injuries continuing to affect the plaintiff include: the injury to her left shoulder, left wrist and left ankle; as well as persistent pain in her neck and back. The pain in her neck and back limits her ability to sit for any extended period of time and is associated with the onset of headaches.

[31] The residual effect of the collision, however, is markedly more significant because of the PTSD and depression that she suffers. Combined, there is significant loss in respect of her vocation, family life and social activities…

[33] Ms. Felix’s life has markedly changed following the collision. She is now reliant on her daughters to assist in keeping her home. She receives psychological therapy, is treated with anti-depressant medication and has been prescribed Ativan and Valium to allow her to sleep. She has not been able to work and has been forced to live off of disability benefits and funds realized by re-mortgaging her home. The evidence from her daughter and her two long-time friends who gave evidence on her behalf was that her level of activity and previously bright outlook on life had markedly changed. Her daughter was concerned that, at times, she seemed suicidal. She said that she noted some improvement after she attended the pain clinic in the spring of 2010 and that she seemed a little happier and better able to manage her pain, but that she had regressed since and lacked focus and initiative. She said she often appeared to be in pain, had become short tempered and withdrew from contact with family and friends.

[34] Many of the same comments were made by her friends who commented on the difficulty in getting her to attend social functions, her lack of participation and stamina, and her fragile emotional state.

[35] For a time, she formed a relationship with an individual she met through a common friend, but they have since separated which she attributed to her depression and inability to join in social activities he wanted to participate in. She relates that she began to abuse alcohol to the point she feared she was alcoholic…





[38] It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…
[47] On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix’s personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.
It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim.  Despite this, the case still has value as a precedent for non-pecuniary damage assessments for chronic pain following a motor vehicle collision.

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If you would like further information or require assistance, please get in touch.

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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