Tag: Mr. Justice Jenkins

Defence Expert Evidence Rejected After Testimony With “Considerable Controversy”

Written by ERIK MAGRAKEN on June 22, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, rejecting the opinion evidence of a defence hired orthopaedic surgery on the grounds that the opinions were prohibited advocacy.

In today’s case (Dhugga v. Poirier) the Plaintiff was involved in 2 collisions that the Defendants conceded liability for. The collisions resulted in chronic injuries. In the course of the litigation the Defendants retained an orthopaedic surgeon who provided evidence minimizing the connection between the plaintiff’s symptoms and the collisions. In rejecting this evidence as advocacy in the guise of opinion Mr. Justice Jenkins provided the following critical comments:

“Hurried” Opinion That Chronic Pain Will “Inevitably Resolve” Rejected By Court

Written by ERIK MAGRAKEN on April 21, 2020. Posted in Uncategorized.

Adding to this site’s archives of judgements criticizing or rejecting expert opinion evidence reasons were published today by the BC Supreme Court dismissing the opinion of a defence retained orthopaedic surgeon commenting on chronic pain.

In today’s case (Adams v. Rhys-Williams) the Plaintiff was injured in a 2014 collision. The Defendants admitted liability. The crash resulted in injuries to the plaintiff which developed into myofascial pain and a chronic pain disorder.

In the course of the lawsuit the defendants retained a partially retired orthopaedic surgeon from Ontario who conducted an independent medical exam. That surgeon opined that the Plaintiff’s injuries were not disabling and ought to “inevitably resolve“. The Court rejected this opinion as being “hurried and more of an attempt to summarily dismiss the injuries claimed“. In rejecting the evidence Mr. Justice Jenkins provided the following reasons:

ICBC Hit With Double Costs Due To Inadequate Settlement Efforts

Written by ERIK MAGRAKEN on September 4, 2019. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published today ordering double costs to a plaintiff who was awarded damages substantially above his settlement request following a vehicle injury.

In today’s case (Godbout v. Notter) the Plaintiff was injured in a a vehicle collision that the Defendant was at fault for. Following an unsuccessful mediation the Plaintiff provided a formal offer to settle his claim for $300,000. ICBC refused and offered 1/3 of this. At trial the Plaintiff was awarded damages totalling $583,199.36 for non-pecuniary loss, past wage loss, future lost earnings, future care costs, loss of housekeeping capacity and special damages.

The Plaintiff was then awarded double costs for ICBC’s unreasonable refusal to accept the Plaintiff’s settlement offer. In finding double costs were warranted Mr. Justice Jenkins provided the following reasons:

$90,000 Non-Pecuniary Assessment for Lumbar Facet Joint Syndrome

Written by admin on October 12, 2016. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases.

Adding to this site’s archived posts of ICBC back injury claims, reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic, partly disabling back injury.
In today’s case (Klein v. Sangha) the Plaintiff was injured in 2 collisions. Fault was admitted and the trial focused solely on the quantum of the Plaintiff’s claim. In finding the collisions resulted in a lumbar facet joint injury giving rise to chronic pain the Court provided the following reasons in assessing non-pecuniary damages at $90,000 –
[51] It is clear on the medical evidence, particularly Dr. Rickards’ evidence, that Mr. Klein probably suffered Lumbar Facet Joint Syndrome as a result of the first accident and that, as a 39 year old male who had suffered “some” degenerative disc disease to his cervical back area, he was susceptible to such an injury…

[57] Considering the inexhaustive list of common factors influencing an award of non-pecuniary damages referred to above, I note the following factors are particularly applicable:

(a) The age of the plaintiff. Mr. Klein was in his late thirties at the time of the first accident in a well-established occupation which provided financial and personal satisfaction to him. But for the accident, Mr. Klein would have had many more years of job satisfaction.

(b) The nature of the injury. Mr. Klein’s injury, specifically to his spine, affects all aspects of life including work, play, sleep and everyday chores.

(c) The severity of pain. Mr. Klein’s pain has left him bed-ridden for prolonged periods of time, interfered with his graduated return to work and led to much pain and frustration over four years.

(d) The disability. Mr. Klein’s disability meant he could only return to work on a part-time basis before the second accident. He has only been able to undertake some of the tasks he was able to complete before the accident and only with resulting pain.

(h) Impairment of physical abilities. This is obvious from Mr. Klein’s evidence and Dr. Rickards’ report.

(i) Loss of lifestyle. Mr. Klein is no longer able to participate in sporting activities, except for a very short period of time. He cannot continue his chosen line of work which gave him great satisfaction in the past, i.e. working with his hands. He has suffered loss of sleep and cannot maintain a home without assistance. He now relies on friends for help whereas he was previously very independent. He has expressed considerable frustration in spite of his efforts to improve including physiotherapy, exercise, acupuncture and more. Nonetheless, he has been told to expand his efforts at establishing an exercise program.

(j) The plaintiff’s stoicism. Mr. Klein has exemplified stoicism by attempting to return to work, to establish and restore a construction business in a modified scenario from his pre-accident work and to continue to support his daughter who was suffering from depression while Mr. Klein was dealing with his injuries. Every aspect of his life has been affected by his injuries…

[62] Mr. Klein expressed considerable frustration at his inability to function at work and in all other aspects of his life. I found his evidence in this respect to be credible. He also thinks, quite reasonably, considering his experiences since the accident, that he will likely be affected by the injuries for a considerable time to come.

[63] I have also considered Dr. Rickards’ evidence about a rehabilitation program he proposed to Mr. Klein to minimize or possibly overcome the effect of his injuries. I have considered his injuries to date and the likelihood that he may never totally recover from them in the above assessment of non-pecuniary damages. Considering all of the evidence and authorities, I find an appropriate award of non-pecuniary damages to be $90,000.

ICBC Punished 25% for Unproven Fraud Allegation

Written by admin on September 21, 2015. Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that unproven allegations of fraud can be used as a factor to minimize a successful party’s costs entitlement after beating a formal offer.
In today’s case (Gupta v. Doe) the Plaintiff was involved in three separate collisions and sued for damages. At trial the Plaintiff was awarded just over $43,000. Priro to trial ICBC made several formal offers, the first at $90,000 and the last at $164,000. Having beaten their formal offer by a considerable margin ICBC asked for post offer costs.
The Court agreed that ICBC was entitled to post offer costs and would have awarded these fully but did not due to ICBC’s unproven allegations of fraud with respect to one of the collisions. In reducing ICBC’s costs award Mr. Justice Jenkins reasoned as follows –

[27] One additional factor which I consider to be appropriate for consideration was the allegation of fraud on the part of the defence in the defence of the 2009 accident. The circumstances of that accident which involved a hit and run driver were included in the testimony of the plaintiff and no explanation was provided by the defence to support this most serious of allegations which subsequently was abandoned by the defence.

[28] In these circumstances, it is appropriate that the plaintiff be awarded costs of the action for damages arising from the 2009 action. Such allegations should never be made without serious consideration by the accuser of the ability to be able to prove the allegations. In this case, it would appear as though the allegations could never have been substantiated and as a result, it is a factor in favour of the plaintiff in considering costs. The problem that follows is how to reflect this conduct on the part of ICBC in the award of costs.

[29] I have come to the conclusion that this factor, i.e. the unproven and abandoned allegation of fraud and the third factor enumerated under Rule 9-1(6), i.e. the relative financial circumstances of the parties should be reflected in the award of costs with a 25% reduction in any amount of costs otherwise payable to the defendants.

[30] Accordingly, the plaintiff is entitled to her full costs on Scale B in all three actions to August 14, 2014.

[31] Considering the options available to a judge under R. 9-1(5), the factors which may be considered under R. 9-1(6) and all other factors where an offer has been made, I award 75% of one set of costs on Scale B to the defence in respect of all steps taken after delivery of the offer of settlement of August 14, 2014 as contemplated under R. 9-1(5)(d).

"Reprehensible" Conduct Results in Special Costs Order Against Plaintiff Following Injury Trial

Written by admin on August 27, 2015. Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay ICBC special costs following ‘reprehensible‘ conduct.
In today’s case (Tambosso v. Holmes) the Plaintiff was injured in two collisions and sued for damages. Prior to trial the Plaintiff received $36,895 in tort advances from ICBC. After a largely unsuccessful prosecution the trial damages awarded were slightly less than this resulting in a ‘zero judgement’ award. As a result the Plaintiff was ordered to pay the Defendant costs.
The Court went further, however, and ordered that the costs be increased to special costs as a result of the Plaintiff’s conduct. In reaching this decision Mr. Justice Jenkins provided the following reasons:

[33] Commencing at para. 52 of my reasons for judgment in this matter, I embarked upon my findings related to the credibility of the plaintiff. Previously in those reasons I had come to a conclusion that the plaintiff’s evidence regarding the “triggering event” causing her alleged PTSD and other psychological concerns had not happened. To be clear, the event in which the plaintiff claimed she feared for her life and had to jump out of the way of the vehicle driven by the defendant Holmes, as per her evidence that “his eyes are imprinted on my mind” and “I thought he was going to kill me, drive over me…” did not occur. Her evidence in this respect was contradicted by the independent witness who stated she had not exited her vehicle, as well as by the evidence of the plaintiff’s friend and passenger that the plaintiff had exited her vehicle but had taken only a few steps before jumping back into their vehicle before the Holmes vehicle came up the hill and passed the plaintiff’s vehicle. I found it most likely the plaintiff learned of the look in Mr. Holmes eyes from the independent witness, Jeremy Leal, who was in close proximity to Mr. Holmes immediately after the accident.

[34] The plaintiff repeated her false version of the events of the 2008 accident to several of the expert witnesses who testified at trial which led those experts to come to opinions as to the plaintiff suffering PTSD and other cognitive damage as a result of the interaction with Mr. Holmes. The deception by the plaintiff continued for several years up to and including the trial.

[35] In addition, my reasons for judgment at trial referred to clear conflicts between the evidence of the plaintiff and the video surveillance recorded by the defence, her evidence that she was not able to drive after the 2008 accident which conflicted with her driving of a rental car within days of the accident for several months, her Facebook postings, and her evidence at trial which was selective, inconsistent, completely uncooperative, non-responsive and simply false. The plaintiff’s evidence on cross-examination resulted in me coming to a conclusion that she had deliberately lied to her disability insurer, to Community Futures where she was paid for attempting a business development plan, to Canada Pension Plan staff and more, all of which resulted in her maintaining an income from the time of the 2008 accident up to trial in 2014. The plaintiff would declare in one instance that she was disabled from the 2008 accident and when convenient to keep funds coming her way would declare she was not disabled by that accident.

[36] The conduct of the plaintiff which must be considered most outrageous and reprehensible for the purposes of a special costs award were the circumstances under which her former friend, Rebecca Aldous, came to be a witness at trial for the defence. Those circumstances are described commencing at para. 188 of my reasons for judgment, which included reference to a voice mail message left by the plaintiff two days before Ms. Aldous was to testify. That message can only be interpreted as an attempt to intimidate Ms. Aldous from testifying. Why the plaintiff would leave a voice mail message of that nature which could and did come back to haunt her is a mystery; however, it is reflective of the behaviour of the plaintiff throughout the trial.

[37] I have no doubt that the actions of the plaintiff at trial and outside the courtroom have amounted to an ongoing effort to deceive the court which conduct deserves rebuke.

[38] I agree with the principles in awarding special costs listed by Madam Justice Gropper in Westsea Construction Ltd. A court must show restraint and must be satisfied of special circumstances to justify the award. The conduct rationalizing an award of special costs must also be “reprehensible”. Those principles are present in this case and are supported by the conduct of the plaintiff detailed in the reasons for judgment for the trial and earlier in these reasons.

[39] The defence is entitled to special costs to be taxed by the registrar, such costs as incurred by the defence from the commencement of each action until the conclusion of the trial.

"Careless" If Not "Deceptive" Expert Opinion Judicially Criticized

Written by admin on July 9, 2015. Posted in Uncategorized.

Adding to this site’s archived cases criticizing expert advocacy in the guise of opinion, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, criticizing such an opinion.
In today’s case (Hendry v. Ellis) the Plaintiff was injured in a collision and sued for damages. THe Defendant hired a doctor who minimized the connection between the Plaintiff’s complaints and the collision. At trial, through cross examination, the doctor made various admissions beyond the borders of the opinion contained in the report. In criticizing the physician’s opinion as “careless” if not outright “deceptive” Mr. Justice Jenkins provided the following reasons:

[26] Expert evidence tendered at trial was that the duration of soft tissue pain is considered to be 12 to 16 weeks and if pain is experienced after that time, it is due to some other mechanism. As Ms. Hendry had no back pain prior to the accident, it is clear that some other mechanism from the accident is the cause or contributing to her current pain.

[27] I will not review in detail the medical evidence which is lengthy. However, I can safely say that I accept the opinion of Dr. Sawhney, the plaintiff’s doctor, and do not find the evidence of the defence expert, Dr. Bishop, to be particularly helpful. I have no doubt about Dr. Bishop’s qualifications, however, there were significant inconsistencies in his evidence provided in an earlier case, the transcript of which was tendered at trial. At trial he agreed the absence of an objective basis for pain does not invalidate pain but he did not say so in his report.

[28] At trial, Dr. Bishop admitted that the plaintiff continues to suffer pain and if the motor vehicle accident did not occur, she would not have experienced the soft tissue injury caused by the motor vehicle accident that initiated acute pain, and he also stated that pain triggers a psychiatric reaction that can lead to chronic pain which is what Ms. Hendry is experiencing. However, once again he did not say so in his report. Dr. Bishop also admitted most chronic pain patients at three years after the accident will likely not make considerable progress or at least he agreed that the chances of significant progress are low.

[29] I will just refer as well to the notes just to save time in the written submissions of the plaintiff in paras. 48 through 53 which I accept those references in the written submissions of the plaintiff regarding the evidence of Dr. Bishop. These submissions were:

48. He [i.e. Dr. Bishop] admitted Ms. Hendry had no prior history of low back pain.

49. He admitted that numerous medical studies have been published, put that put that 3-15% of people continue to have pain after a soft tissue injury and that by definition, Ms. Hendry is in that percentage of people.

50. In a previous case he had admitted that there is a leading medical theory that explains why people have pain after 12-16 weeks: central nervous system hypersensitivity theory, but in the case at bar he denied it was a leading theory, even though he accepted it.

51. He admitted that he did not advise the court in either of his report that 3-15% of people continue to have pain after a soft tissue injury even though he knew he was writing his second report specifically for the purpose of an imminent trial.

52. It is respectfully submitted that Dr. Bishop did not meet the requirement of an expert in their duty to assist the court and to candidly disclose alternate theories that could account for the plaintiff’s pain. At best, it was careless, at worst, it was deceptive by omission.

53. He finally admitted that MVA injuries were the only reason that started the plaintiff down the path of chronic pain. When asked if the car accident initiated the process, he finally admitted that yes it had. He said that he did not put this in his report because “I’m bound by the questions I was asked”. With respect, this is an irresponsible attitude for an expert to hold.

[30] Dr. Bishop also stated many times he does not know the objective cause of her pain as no bone scans have been performed and she has not seen a psychiatrist for testing. I find that the cause of the pain has been the soft tissue injuries and other injuries, some of which may not now be identified as per Dr. Bishop and that her pain is chronic in nature and most likely to continue.

Facebook Posts Derail Personal Injury Claim

Written by admin on March 11, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting aspects of a personal injury claim in part due to postings from the Plaintiff’s Facebook page.
In today’s case (Tambosso v. Holmes) the Plaintiff was involved in two collisions. The Plaintiff claimed significant injuries and sued for damages. Mr. Justice Jenkins accepted the Plaintiff suffered some injury in the collisions but largely rejected the Plaintiff’s claim. In doing so the Court relied heavily on the Plaintiff’s postings on Facebook which the Court found were “completely inconsistent with the evidence the plaintiff gave at trial”. Mr. Justice Jenkins provided the following reasons:

[170] Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.

[171] One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

[172] It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.

[173] Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab 1:

a) The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.

Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there . . . with bells on! xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.

b) Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.

c) The plaintiff’s Facebook posts continued through 2010 and 2011with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.

[174] I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.

ICBC Formal Offers Seeking to Pay FMEP Deemed Not Reasonable

Written by admin on February 16, 2015. Posted in BC Supreme Court Costs Cases.

Update October 6, 2015 – today the BC Court of Appeal overturned the below reasoning finding “In my view, the judge erred in principle in finding that the reference in the offer to settle to ICBC’s obligation to remit settlement monies in the amount alleged to be owed by the plaintiff for arrears of support to FMEP rendered the offer not one that the plaintiff ought reasonably to have accepted.”
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Interesting reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that it is not reasonable for a Plaintiff to accept a formal settlement offer from a Defendant insured with ICBC where ICBC will first pay off debts the Plaintiff allegedly owes to the Family Maintenance Enforcement Program.
In today’s case (Loft v. Nat) the Plaintiff was injured in a motor vehicle collision and sued for damages. At trial the Plaintiff sought substantial damages of over $1.8 million. The Plaintiff’s claims were largely rejected with damages just over $60,000 being awarded. Prior to trial the Defendant made two formal settlement offers, one for $125,000 and the second for $150,000. Both offers contained the following term:
The defendants confirm that this offer is made with the acknowledgement that the Insurance Corporation of British Columbia (“ICBC”) has been served with a Notice of Attachment and/or Requirement to Pay and is therefore obligated to first pay to Family Maintenance Enforcement Program (“FMEP”) from the Settlement Payment in this matter. The defendants and /or ICBC are required to first meet any obligation to FMEP before paying monies to the plaintiff in relation to the Settlement Payment, pursuant to the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 and amendments and regulations thereto.
Mr. Justice Jenkins held that the offers were not reasonable on the basis that ICBC was not formally a debtor to the Plaintiff and as such deductions on the basis of the FMEP Notice of Attachment were not reasonable. The court reasoned as follows:

[13] The plaintiff also submits that the Notice of Attachment and/or Requirement to Pay should not have been included in the offers to settle as those documents were issued to ICBC, not to the defendants, and ICBC was not and would not become obligated to pay the settlement amount or the amount of any judgment. The Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 provides for a notice of attachment in s. 15 (1) which states:

15 (1) If the debtor has at any time defaulted in a payment required under a maintenance order, the director may serve a notice of attachment in the prescribed form on a person who is indebted or likely to become indebted to the debtor.

A “debtor” under the Act is defined as:

“debtor” means a person required under a maintenance order to pay maintenance;

[14] The plaintiff submits that service of the Notice of Attachment and/or Requirement to Pay on ICBC would not attach the settlement funds, if one of the offers had been accepted, as ICBC would not have been indebted to the plaintiff. According to the wording of the settlement offers, it was the defendants who had offered to pay the plaintiff the settlement funds. ICBC was obligated to indemnify the defendants and had no obligation to pay the plaintiff the settlement amount upon acceptance of an offer to settle…

[31] I am unable to make a costs award in favour of the defendants on the basis of the defendants’ two offers to settle as I conclude they were not offers that ought reasonably to have been accepted on the dates the offers were made. I accept both submissions put forward by the plaintiff in this regard. Even if the plaintiff was inclined to accept one of the offers to settle, the condition included in the offers relating to the Notice of Attachment and/or Requirement to Pay from FMEP should not have been a term of the offer. ICBC was not and would not have been indebted to Mr. Loft. ICBC was not a party to the action and its obligation was only to indemnify the defendants for negligence if the court awarded damages to Mr. Loft. As well, the offers of settlement were made by the defendants, not ICBC, and the defendants had no obligation to ICBC if one of the offers was accepted.

Expert Witness Judicially Drubbed for Showing "a Lack of Willingness to Be Frank, Open and Honest With The Court"

Written by admin on April 17, 2014. Posted in Uncategorized.

In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.
In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision. The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries. In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments:
[1]             This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court…
[75]         Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.
[76]         During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.
[77]         Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so….
[82]         In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.
[83]         In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.