Tag: Mr. Justice Harvey

Rear-Ended Motorist Found Partly At Fault For Collision

As previously discussed, occasionally a motorist who is rear-ended by another can be found liable for the collision.  Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, with such a result.

In the recent case (Bay v. Woollard) the Plaintiff struck a vehicle that had, moments prior, struck another vehicle.  The middle motorist in the three car pile up was found 25% at fault for the second collision despite being rear-ended.  The primary reason for this finding was the Defendant’s failing to brake before the first crash thus depriving the Plaintiff of full notice of the imminent hazard.  In reaching a 75/25 split for the impact Mr. Justice Harvey provided the following reasons:

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$160,000 Non-Pecunairy Assessment for a "Complicated MTBI with Residual Symptoms"

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a “complicated MTBI with residual symptoms“.
In today’s case (Matromonaco v. Moraal) the Plaintiff pedestrian was standing on a sidewalk waiting to cross a street when the Defendant ran a red light, lost control of his vehicle, drove onto the sidewalk and struck the Plaintiff.  The Defendant was soley responsible for the crash.  The Plaintiff suffered a variety of soft tissue injuries that fully healed.  She also suffered a mild brain injury which caused continuing symptoms at the time of trial.  In assessing non-pecuniary damages at $160,000 Mr. Justice Harvey provided the following reasons:

[210]     The Plaintiff suffered a number of physical injuries which I characterize as soft tissue injuries. All healed uneventfully within a reasonably short period of time after suitable treatment by way of physiotherapy and exercise.

[211]     Her most significant injury by far is the MTBI.

[212]     I accept that this injury has caused the Plaintiff mild cognitive impairment in processing, which in turn has impacted memory, mood concentration and focus. The result, not surprisingly, is that the Plaintiff exhibits signs of depression and social isolation.

[213]     Counsel for the Plaintiff referred me to a number of authorities involving plaintiffs with injuries similar to Ms. Mastromonaco, suggesting an appropriate range for non-pecuniary damages is $150,000 to $200,000.

[214]     Specifically, I have been referred to and considered Curtis v. MacFarlane, 2014 BCSC 1138; Watkins v. Dormuth, 2014 BCSC 543 [Watkins]; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111;Harrington v. Sangha, 2011 BCSC 1035 [Harrington]; Sirna v. Smolinski, 2007 BCSC 967; and Dikey v. Samieian, 2008 BCSC 604 [Dikey].

[215]     No two cases are alike. At one end of the extreme is the decision in Dikey, where the plaintiff suffered profound cognitive deficit requiring that he have daily assistance with his living requirements for the rest of his life. He also suffered significant ongoing pain. Similar findings were made in Harrington.

[216]     In terms of similarities, the Plaintiff’s present condition, attributable to the aftereffects of the accident, are as follows: irritability, anxiety brought about by stress, poor memory, concentration, distractibility, fatigue and general low mood.

[217]     While not so severe as the 32-year-old plaintiff in Watkins, the case is similar, such that it provides a useful starting point for the analysis. In Watkins, Blok J. awarded general damages of $175,000.

[218]     Unlike the plaintiff in Watkins, the Plaintiff here is not experiencing ongoing headache, problems with balance or noise intolerance. I also take into account the difference in the plaintiff’s respective ages, as Ms. Watkins was 27 years old at the time of she was injured in a car accident. Accordingly, I assess the Plaintiff’s non-pecuniary loss at $160,000.

Defendant Stripped of Costs For Expert Witness Advocacy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, stripping Defendants of significant trial costs they otherwise would have been entitled to as a result of relying on an expert witness who crossed the line into advocacy.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 collisions.  He alleged he sustained a traumatic brain injury and sought damages exceeding one million dollars at trial.  The Court rejected the brain injury claim and found that the Plaintiff sustained modest injuries awarding $15,000 in total damages.  Prior to trial ICBC made a formal offer of settlement of $125,000.   ICBC sought costs from the time of the offer onward. Mr. Justice Harvey held that normally such an order was appropriate but because of the Defendant’s expert witness’ evidence at trial which crossed into advocacy and further due to the Defendant lawyer’s conduct in the course of a mid-trial application, the Defendant should be stripped of their post offer costs.  In coming to this conclusion the Court provided the following reasons:
[72]         As  earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.
[73]         The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate:Jayetileke, supra.
[74]         In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.
[75]         Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.
[76]         In the circumstances, despite the September Offer and the defendants’ success on the issue of whether the plaintiff suffered an MTBI as a result of any of the four accidents, it is appropriate to deny the defendants the costs of trial leaving intact the plaintiff’s entitlement to costs up to and including the date of the offer to settle but no costs thereafter.

$75,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision.  Fault for the incident was admitted by the Defendant.  The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial.  While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:

[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.

[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.

[492] The question that remains is, what is the cause?..

[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.

[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.

[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…

12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.

[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.

[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.

More on Rule 15 and Pre Trial Costs Assessments


Last year Master Baker released reasons for judgement assessing pre-trial settlement costs of a Rule 15 lawsuit at $6,500.  Today reasons for judgement were released upholding this analysis finding no error was made in such an assessment.
In today’s case (Gill v. Widjaja) Mr. Justice Harvey provided the following reasons upholding the Master’s decision:

[47] I turn now to the matter of the tariff fees allowed by Master Baker of the $6,500 in costs.

[48] Rule 15-1(15) reads:

(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1(10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:

(a)  if the time spent on the hearing of the trial is one day or less, $8,000;

(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9 500;

(c) if the time spent on the hearing of the trial is more than 2 days, $11 000.

[49] The Rule, as written, gives the registrar wide discretion in determining the appropriate tariff amount.  Master Baker was aware of the steps taken in the litigation and the date of settlement relative to the trial date.

[50] Having regard to the aforementioned test that I must apply, I am not of the view that an error in principle has been demonstrated nor do I find that the master was clearly wrong in his determination that the appropriate cost of tariff amount was $6,500.

[51] The express purpose of Rule 15-1 is to streamline the process both for trial and, presumably, taxation of costs.  Parsing out the details in each action where the amounts do not apply is not, in my view, the proper course.  Indeed, were it, in this action there was a settlement conference which no doubt necessitated some significant preparation, much like trial preparation, and, as well, a trial management conference.  Each of those events resulted in discussions leading to the settlement of this matter.

[52] In those circumstances I find no error in principle such as to interfere with the finding of the master.

Motorcyclist Crossing the Centre Line Found Fully Liable for Collision

Reasons for Judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a two vehicle collision involving a motorcycle and a cube van.
In last week’s case (Hale v. MacEwan) the Plaintiff motorcyclist was travelling southbound on 207th Avenue in Maple Ridge BC when he collided with the Defendant’s vehicle which was travelling in the opposite direction on the two lane street.  While the Court heard competing versions of events Mr. Justice Harvey concluded that the Plaintiff, whose blood alcohol limit was “twice the statutory level of impairment” failed to navigate the ‘hairpin turn” depicted in the below satellite image:

The Plaintiff crossed into the Defendant’s lane of travel and the collision occurred.  The Plaintiff argued that the Defendant was partially to blame for driving “too close to the centre line“.  Mr. Justice Harvey rejected this argument finding that the Defendant was appropriately in his own lane of travel.  In dismissing the claim the Court provided the following reasons:

[59] Here I am able to say with some precision where the accident occurred and the distance of the defendant’s container from the centre line. As noted, I am satisfied he was with in his lane of travel. The negligence of the plaintiff has been made out. He failed to maintain his vehicle within the travelled portion of the roadway for his direction of travel.

[60] The remaining question is this: was the defendant so close, as was the case in Watson, as to make his actions unreasonable?

[61] In concluding that he was not, I distinguish the situation from that which occurred in Watson, to the facts here. Here, the violation by the plaintiff was both unusual and unexpected.

[62] Neither driver testified to a situation which should have caused the defendant to consider that the plaintiff would fail to negotiate the corner. His speed was not an issue and he seemingly, according to all witnesses, had control of his vehicle as he entered the curve…

[67] Here, unlike in Watson, the distance between the outer edge of the van and the centre line was 20-25 cm or 9-10 inches. The front of the van, while not perfectly centered within the defendant’s lane, was set back from the centre line even further.

[68] Whatever contact occurred between the defendant’s mirror, the plaintiff, his passenger, and/or his vehicle, did not occur in the plaintiff’s lane of travel.

[69] To require the defendant to position his vehicle farther from the centre line in anticipation of the negligence of the plaintiff requires a standard of perfection, not reasonableness.

[70] In the result I am satisfied that the accident occurred wholly as a result of the plaintiff’s negligence. The action is dismissed.

BC Supreme Court Declines Jurisdiction in Out of Province Sexual Abuse Action


Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the jurisdiction of the BC Supreme Court to hear a claim involving alleged sexual abuse which took place out of  Province.
In this week’s case (TC v. AM) the Plaintiff sued her former father in law in the BC Supreme Court claiming he sexually abused her in Montreal.  The Defendant, at all material times, lived in Montreal and continued to reside there when the lawsuit started.  He did not respond to the lawsuit.  The Court ultimately found that no jurisdiction existed to hear this case pursuant to the Court Jurisdiction and Proceedings Transfer Act.  In doing so the Mr. Justice Harvey provided the following reasons:





[8] None of the presumptive categories under s. 10 of the CJPTA apply in these circumstances; however, the language of s. 10 clearly indicates that those categories do not limit “the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based.”

[9] The common law threshold for a real and substantial connection is high. In Josephson v. Balfour Recreation Commission, 2010 BCSC 603, Loo J. stated:

[79] The real and substantial connection test requires that there be a significant or substantial connection: Beals v. Saldanha, [2003] 3 S.C.R. 416; and UniNet Technologies Inc. v. Communication Services Inc., 2005 BCCA 114.

[10] The jurisprudence in British Columbia suggests that the mere residence of the plaintiff in British Columbia is not sufficient to establish jurisdiction over a defendant resident outside of the province. Something more is required. This was discussed in Dembroski v. Rhainds, 2011 BCCA 185, where Hall J. referred to the decision of Bruce J. in Roed v. Scheffler, 2009 BCSC 731…

[11] This case lacks the additional element, beyond the mere residence of the plaintiff in this jurisdiction, to support a finding that there is a real and substantial connection between British Columbia and the facts on which a proceeding is based. The action concerns allegations of sexual assault in Quebec in relation to a defendant who continues to reside in Quebec. There is not a “significant connection” as required by the Supreme Court of Canada in Beals v. Saldanha, [2003] 3 S.C.R. 416.

[12] That the plaintiff suffers damages here is, as was the case in Roed, purely as a result of her residence in British Columbia. As stated by Dickson J. in Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, and referred to in Dembroski, if the essence of a tort is injury, “a paramount factor in determining situs must be the place of the invasion of one’s right to bodily security.” That location in this case is Quebec. The motor vehicle scenarios in Roed and Dembroski are analogous for the purposes of determining territorial competence, as they concern tortious conduct in another jurisdiction. The presence of the plaintiff in British Columbia alone does not establish a real and substantial connection in relation to events that occurred in another jurisdiction where the defendant continues to reside.

[13] Accordingly, I dismiss the plaintiff’s application.





The New Rules of Court and the Prohibition of Expert Advocacy


While expert ‘advocacy‘ has always been prohibited, Rule 11-2 of the BC Supreme Court Civil Rules expressly imposes a duty on expert witnesses “to assist the court” and “not to be an advocate for any party“.  Experts need to specifically acknowledge that they are aware of this duty, author reports in compliance with this duty and testify in conformance with this duty.
Despite this expert advocacy still exists as was demonstrated in reasons for judgement released this week in the BC Supreme Court.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 seperate collisions.  He sued for damages with his most serious allegation being a Traumatic Brain Injury (TBI).  Ultimately the TBI claim was dismissed with Mr. Justice Harvey finding that the Plaintiff’s chronic complaints were more plausibly explained by factors other than brain trauma.  Prior to doing so, however, the Court made the following critical findings of the expert retained by ICBC in the course of defending the claims:

[251] Dr. Rees is a neurologist. Since approximately 2004 his practice has been largely comprised of examining persons with suspected brain injuries on behalf of defendants, principally ICBC.

[252] In that period Dr. Rees had not examined a litigant whom he found to have suffered an MTBI where the symptoms lasted beyond two years. He opined that the plaintiff had not sustained an MTBI in the first accident or any of those which followed in August 1999…

[257] Dr. Rees initially testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100 neurons in the human brain. I am satisfied that Dr. Rees was in error in this regard. Although counsel suggested, and Dr. Rees ultimately adopted, 126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5, counsel subsequently advised the Court of his own mathematical error resulting in agreement that the actual number was 126,000. While the difference between these numbers is significant, it still appears that Dr. Rees was outside his area of expertise and was “guessing at the degree of resolution.

[258] Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI

[259] A major difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the plaintiff experienced a “credible event” which would account for brain trauma. During vigorous cross examination Dr. Rees acknowledged that he could not offer an opinion on the tensile strength of brain matter, and that an acceleration/deceleration impact could damage muscle tissue which he acknowledged is denser than brain matter.

[260] Dr. Janke, the other defence expert, and Dr. Ancill were both of the opinion that a force far less than that described by Dr. Rees could result in an MTBI.

[261] Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…

[316] I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.

As recently discussed, the UK Supreme Court stripped expert witnesses of immunity exposing them to the threat of lawsuits for negligent services.  The law in BC currently does not permit this making judicial criticism the strongest remedy for experts who ignore the duties set out in the Rules of Court,

Examination For Discovery and Continuations – A "Heavy Onus"


One of the welcome developments in the New BC Supreme Court Rules is a cap on the length of examinations for discovery.   Examinations in conventional lawsuits are capped at 7 hours under Rule 7-2(a) and limited to 2 hours in Fast Track trials.  The Court has a general power to permit lengthier examinations in appropriate circumstances.
When parties conclude an examination for discovery there are typically requests for further information and parties usually agree to a follow up discovery to address matters arising from the further disclosure.  When a party wishes to further explore a topic already covered, however, they are usually not permitted to have a continuation of the discovery.  Reasons for judgement were released today addressing this area of law.
In today’s case (Lewis v Lewis) the Plaintiff was involved in a 2005 motor vehicle collision.  The Plaintiff alleged injury.  The Defendant denied that she was injured and alleged that her injuries were pre-existing.  In the course of the lawsuit the Plaintiff provided various medical records including pre-accident records.
The Plaintiff attended a discovery and was examined with respect to her injury claim.   After concluding the discovery the Defendants requested a continuation to further explore the issue of the Plaintiff’s pre-accident health.  The Plaintiff opposed arguing that she had already been examined with respect to this topic.  Mr. Justice Harvey agreed with the Plaintiff and dismissed the application for a further discovery.  In doing so the Court provided the following useful reasons:

[8]             The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it.

[9]             Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.

[10]         Here that is not the case. Here the defendant, together with its medical advisor, failed to see what was there to be seen. Specifically, each failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery.  I am not satisfied that the heavy onus that is set forth in the decisions I have been referred to, one of which was Sutherland (Public Trustee of) v. Lucas, has been met.

[11]         Accordingly the application for a further discovery by the defendant is dismissed.

Late Examinations for Discovery and the New BC Supreme Court Rules


Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, discussing the right to conduct an examination for discovery in the two weeks proceeding trial under the New Civil Rules.
In today’s case (Lewis v. Lewis) the Plaintiff sued for damages as a result of injuries sustained in a motor vehicle collision.  ICBC was a statutory third party in the lawsuit and failed to exercise their right to examine the Plaintiff for discovery in a timely fashion.  ICBC served the Plaintiff with an appointment to attend a discovery 10 days before trial.  The Plaintiff objected arguing, amongst other things, that discoveries are not permitted within the two weeks prior to trial.  ICBC applied for an order compelling the Plaintiff to attend.
In support of their application ICBC argued that the prohibition preventing discoveries in the two weeks preceding trial no longer exists in the new BC Supreme Court Civil Rules.   Mr. Justice Harvey, while not directly addressing this issue, dismissed ICBC’s motion and in doing so made it clear that the rules of Court operate so as to make it difficult for a party to be permitted to conduct a late discovery.  Mr. Justice Harvey provided the following reasons:
[7]  In response to (ICBC’s argument) Mr. Parsons, on behalf of the plaintiff, says that a clear reading of Rule 12-4(3) makes clear that the new rules still contemplate a prohibition against any step, including an examination for discovery, within the period prescribed in Rule 12-4(2).
[8] Rule 12-4(2) reads
A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.
[9] I am not persuaded in these circumstances I need to decide that very interesting issue, because I have also been referred to Rule 12-4(6) which says that:
A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.
[10]  The third party has not filed a trial certificate nor could they have given the requirement to have conpleted examinations for discovery as part of the requirement of “readiness”.  Now, 10 days before trial, it is too late to do so.
[11]  Counsel for the third party see this as an excuse allowing them to, at this late date, seek the Court’s leave for the application to compel the plaintiff’s attendance at the proposed discovery.
[12]  That, with respect, is disingenuous.  It has been open to the third party to conduct its discovery since the time it became a party.  That was in October of 2008.
[13]  Instead, the third party has chosen to rely on the defendant to take the lead in this litigation…
[14]  The third party has, at the last moment, unilaterally set down an examination for discovery over the objections of counsel for the plaintiff as to timing.  Counsel is busy with trial preparation for a 15 day jury trial.
[15]  The third party failed to provide conduct money and failed to file a trial certificate in accordance with the rules…
[16]  Contrary to the Rules, leave was not sought to bring the application when short leave was sought before the Master who heard the application.  The application for short leave was brought without notice and counsel for the plaintiff was unable to draw to the Court’s attention the failure of the third party to (1) require leave for their application and (2) failure to provide conduct money to the plaintiff.
[17]  In those circumstances, I am not prepared to gran the third party the leave required to bring this motion.

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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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