Tag: Mr. Justice Myers

BC Supreme Court – No "Joint and Several Liability" For Stanley Cup Rioters

Reasons for judgement were released yesterday by the BC Supreme Court,  Vancouver Registry, addressing if an individual causing property damage in a riot can be ‘jointly and severally’ liable for damage caused by others in the riot.
In this week’s case (ICBC v. Stanley Cup Rioters) British Columbia’s government monopoly auto insurer, ICBC paid out numerous claims after vehicles were damaged and destroyed in the 2011 Stanley Cup Riot in downtown Vancouver.
ICBC sued numerous individuals.  As with any lawsuit, collecting damages is a concern and some of the Defendants had deeper pockets than others.  ICBC argued that Defendants should be jointly and severally liable (a legal principle that allows a Plaintiff to collect all the damages from one of many responsible parties, typically the one with the deepest pockets, and leaving it to that Defendant to chase down and collect the fair share from other liable parties.).
Mr. Justice Myers rejected this argument finding that the Defendants were individually responsible for the damages they caused but the principles of joint and several liability were not triggered in this riot.  In reaching this conclusion the Court reasoned as follows:

[31]     In its notice of civil claim, ICBC pleaded:

499.     Each and all of the Defendants, named and unnamed, having participated in the Riot, are joint tortfeasors, along with others who participated in the Riot, and who joined in a common unlawful purpose of rioting contrary to criminal and common law, and thereby caused or contributed to the losses of the Plaintiff, and are liable to the Plaintiff for any or all of the damages caused by the Plaintiff herein.

The proposition is that the unlawful riot was a common design.  Every one who participated in it is a joint tortfeasor and therefore liable for all the damage done in the riot.

[32]     It is to be borne in mind that this was not a planned or deliberate riot.  There was no ringleader; it was not instigated by a person or group of people.  It was spontaneous.  Under these circumstances, it appears to me ICBC’s proposition is too broad.

[33]     First, it is too broad on a geographical level:  every one participating in the riot on Seymour Street would be jointly liable for damage done by participants on Howe Street.

[34]     Second, it is too broad from a conduct point of view.  For example, someone who has refused to leave the riot in order to take photographs would be equally liable for the destruction of a vehicle by someone else even if they never encouraged that destruction, much less laid hands on the vehicle.

[35]     Third, it is too broad because it does not recognise that the assistance rendered to the principal tortfeasor must be substantial.

[36]     Fourth, it begs the difficult factual distinction between whether there was one riot or several.  (Although the riot has been referred to in the singular, and I will continue to use the term, it is imprecise for the purposes of determining joint liability for a tort.)

[44]     As I stated, this was not a directed or coordinated riot.  Nor did it involve gangs spontaneously coalescing and then moving from location to location in unison.  As I set out above, I do not accept that participation in the riot, in itself, establishes joint and several liability for torts committed during the riot.  As noted by Lords Neuberger and Sumption in Sea Shepherd, joint tortious liability must be kept within reasonable bounds.  The analysis must be more fine-tuned than looking at the riot as a whole.  For most of the defendants, the question that must be asked is whether they acted in concert with the common end of destroying a vehicle and whether the destruction occurred as a result (above, para. 27).

[45]     Another way of expressing the question is to ask whether a defendant was part of the group that destroyed the vehicle and was his participation more than trivial.  That has to be examined vehicle by vehicle, defendant by defendant.  A defendant may be liable for damage to more than one vehicle if he took part in damaging those vehicles; that does not make him liable for all of the vehicles.

[46]     Several people spontaneously arriving at a vehicle and some of them cheering when another damages the vehicle does not amount to a common design.  There is no case where the law has gone that far.  Cheering or observing is not sufficient participation upon which to found joint liability.

[47]     People “piling on” a vehicle in order to damage or destroy it may be joint tortfeasors if it is apparent they acted together pursuant to a common design to do the damage.  In a riot context, I do not think it necessary that the plan be explicitly laid in advance between them.  They may also be concurrent tortfeasors if the damage they caused is impossible to apportion.  In that case, each is liable for the full amount of the loss.  They may also both be liable as principal tortfeasors (per Lord Toulson at para. 19 ofSea Shepherd).

[48]     There are several instances where a defendant did something to a vehicle that did not harm it (for example, attempting to remove a gas tank cover) and the vehicle was destroyed at a later point, there being no evidence as to the link between the defendant’s initial action and the ultimate destruction.  In that case, I do not think there can be any liability.  That can be viewed as an instance where, to use Lord Neuberger’s framework (above, para. 25), no assistance was provided to the tortfeasors who are primarily liable; i.e., those who caused the damage.  It can also be viewed as the defendant having only a similarity in design but being an independent actor not causing damage per Scrutton L.J. in The Koursk (above para. 27).

"Reasonable Efforts" Identifying At Fault Motorist Cannot Be Determined by way of Summary Trial

Adding to this site’s database of ICBC Unidentified Motorist prosecutions, reasons for judgement were published today by the BC Supreme Court, Kamloops Registry, finding that the Summary Judgement rule cannot be used to determine if a plaintiff made all reasonable efforts to identify the at fault driver which is a prerequisite to a successful unidentified motorist prosecution.
In today’s case (Lapointe v. ICBC) the Plaintiff used the summary judgement rule to strip ICBC’s defence alleging the Plaintiff failed to make all reasonable efforts to identify the at fault motorist.  ICBC appealed and Mr. Justice Myers overturned the earlier ruling noting the Court can only address this issue when determining liability and cannot address this defense in a piecemeal fashion.  In reaching this decision the Court provided the following reasons:

[8]      The issue in this appeal is purely a legal one. The standard of review is therefore correctness: Ralph’s Auto Supply (B.C.) Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, at para. 7.

[9]      I do not agree with the plaintiff’s argument which artificially separates the cause of action against the unknown driver or owner from the claim against ICBC. Although it is common practice to name John Does as substitutes for the driver and owner, the section does not require that; an action may be brought against ICBC only. It is obvious that there is no John Doe to serve and no default judgment can be taken against the unknown driver or owner. ICBC is fully in control of the defence until the time of judgment or the driver or owner is found. I do not think there is a separate claim against under ICBC under s. 24 as the plaintiff maintains.

[10]    Therefore, a decision on s. 24(5) alone is not determinative of a claim and cannot result in a judgment; it is only a decision on an issue. On the basis of Century Services, it is therefore not amenable to a Rule 9-6 application.

 [11]   That is sufficient to allow the appeal but there is a further related point (not argued by ICBC) which reinforces this conclusion. The obligation to attempt to locate the driver or owner is a continuing one in this sense: if facts come to light that make the identity ascertainable, the plaintiff is no doubt obligated to follow up on that information. And, if the identities become known, section 24(6) provides that the driver or owner must to be substituted for ICBC in spite of any limitation period.  The wording of section 24(5) is that “a judgment against the corporation must not be given unless the court is satisfied that…”. This contemplates a single judgment.

[12]    I therefore do not think that a separate decision on section 24(5) can be made in advance of a decision on liability as a whole. Put another way, the time at which the court must be satisfied as to the factors in s. 24(5) is the time of the determination of liability for the accident. The opposite interpretation would allow for a scenario where s. 24(5) is determined in favour of a plaintiff, and the driver becomes known before the trial on liability. It would then make the substitution for ICBC impossible as the matter would be res judicata.

 [13]   I therefore allow the appeal.

Injury Claim Dismissed Following Collision That Was "Impossible" To Recall

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving an alleged hit and run.
In today’s case (Havens v. ICBC) the Plaintiff was involved in a 2010 motorcycle collision.  He sustained a brain injury.  The Plaintiff alleged that the collision was caused through the careless actions of an unidentified motorist operating a red truck.  The Court dismissed the claim finding it was not proven, most notably accepting medical evidence that the plaintiff’s recollection was medically ‘impossible‘ given the nature of his head injury.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

[22]    ICBC obtained a report from a psychiatrist, Dr. Roy O’Shaughnessy, to address the likelihood of the plaintiff being able to recall the accident reliably after receiving the blow to the head.  He referred to the plaintiff’s memory as being “recovered memory”, which is memory that occurs much later after the fact.  Dr. O’Shaughnessy opined that Mr. Havens’ reported memory is not consistent with the physiology of memory in two ways.  The first was that:

… he states he has developed a memory of being struck in the head by lumber extending out the rear of a pick-up truck that he states was in the lane beside him and crossed into his lane. He then recalls seeing the pick-up truck passing by him in his lane before becoming unconscious. This is physiologically impossible. If he were to have received a blow to the helmet or head that would have rendered him unconscious, it would have occurred immediately with impact and not some time later. He would not have been able to recall seeing the red pick-up truck pass by him and enter into his lane as he believes he recalled. Invariably any blow to the head of such a nature to cause unconsciousness does so immediately post blow. Were he to have actually been struck in the head, he would not have recalled anything post impact and would certainly not have recalled seeing the red pick-up truck accelerate away from him.

[23]    The second is that when he was admitted to the hospital, Mr. Havens had an impaired Glasgow Coma Scale of 7 out of 15.  Given that, it would have been impossible for him to have laid down long-term memory after the blow to the head:

… If there is a disruption in the person’s abilities to attend, focus, or concentrate, they will not be able to lay down memory or recall it at a later date. Individuals who have suffered a head injury of this magnitude will invariably experience impairment in their capacity to attend or concentrate such that the memory will never have been laid down in the first place and it is not “recoverable” at a later date.

[50]    I accept the evidence of Dr. O’Shaughnessy that it would have been impossible for Mr. Havens to be able to recall the accident.

[51]    That would be sufficient to dismiss the action, but the other inconsistencies in Mr. Havens’ evidence and the evidence of the other witnesses confirm that conclusion.

Insurance Giant Argues Former In House Lawyer Cannot Act for Plaintiff Suing Them

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing arguments by the Manufacturer’s Life Insurance Company attempting to have a former in-house lawyer of theirs acting as plaintiff counsel in a breach of contract claim against them.
In today’s case (McMyn v. Manufacturer’s Life Insurance Company) the insurer argued that, as a former in-house lawyer, Plaintiff’s counsel had knowledge of their “business practices, litigation strategies, insurance policies and certain claims personnel” and it would be unfair to allow him to now use this knowledge against them.
In dismissing the application Mr. Justice Myers provided the following reasons:

[32]    With respect to the claim for LTD benefits, it is up to the plaintiff to show that she fell within the terms of the policy.  The terms of the policy are certainly not secret.  It cannot be argued or assumed that Manulife has some secret interpretation of the policy that Mr. Fishman has knowledge of.  It is hard to see that knowledge of the claims people would have any effect on Mr. Fishman’s train of inquiry on that issue, including the handling of examinations for discovery.  As in most LTD claims the real issue will no doubt be – and no one argued otherwise – Ms. McMyn’s medical condition and how that fits into the wording of the policy.

[33]    With respect to the bad faith claim, the plaintiff must show a failure of Manulife to act with reasonable promptness or a failure to deal with the insured fairly:  702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s London, England, [2000] O.J. No. 866 (Ont. C.A.).  That will obviously depend on the way this claim was handled based on the evidence in this case.  Knowledge of how the claims people may have handled past claims will be of little or no assistance.

[34]    Manulife argued that Mr. Fishman has insight into how the claims people or Mr. Lizé perform in examinations for discovery.  That might be true.  But it must be put into perspective.  First, in terms of witnesses selected for examination for discovery or at trial, the relevant witnesses are those that have familiarity with the facts of the claim.  That is something that any lawyer would be able to ascertain through document discovery or interrogatories.  Mr. Fishman has no inside knowledge of that because he was not at Manulife when the plaintiff filed her claim.

[35]    Knowledge of how Manulife personnel perform in examinations for discovery might provide a minor advantage.  But any lawyer who had previously done an examination for discovery or cross-examination in trial of that witness would also have that insight.  It is to be borne in mind that Manulife as a major LTD insurer in Canada is an institutional litigator.  This is not a one-off claim being made against it.  Any lawyer specialising in LTD claims would be expected to act against Manulife multiple times and most likely come up against the same Manulife personnel.

[36]    Insofar as Mr. Fishman being aware of Manulife’s claims handling procedures, once again he has been gone from the company for over two years.  The issue will be the way this claim is handled.  If there are Manulife claims handling manuals their existence will come out in the examinations of discovery conducted by any counsel.

[37]    In Sandhu the Court noted, at para. 32, that the approach to this type of application is a “cautious one” and that the court should only interfere in “clear cases”.  While the Court of Appeal disqualified the lawyer, this case comes nowhere near to the facts in that case, where the lawyer had knowledge of confidential information pertaining directly to her new client.

[38]    Regarding Mr. Fishman having handled bifurcation applications, Manulife said Mr. Fishman is aware of Manulife’s preference for bifurcation of bad faith claims.  So would any lawyer who was previously on the receiving end of that type of application from Manulife.  In this case, the simple fact is that Manulife will make the application or it will not.  I fail to see what confidential strategy could have been involved in bifurcation claims that would give Mr. Fishman an advantage.

[39]    Finally, I do not place any significant weight on Mr. Lizé having been appointed as the case manager on this file.  He was not appointed until after Manulife knew that Mr. Fishman was acting on the case.  Manulife also appointed Mr. Lizé as the case manager on the Galley action.  Manulife says it would be inconvenient to appoint another case manager, because they would have to come from out of town for discoveries, trial or meetings.  However, for a company the size of Manulife that must be a small consideration.

[40]    In Atco, the Court concluded that the case the lawyer was acting on against Atco was sufficiently connected to the work he had done at Atco to raise the rebuttable presumption that he had confidential information pertaining to the new retainer.  The connections in that case were more direct than the ones here.  In Atco the lawyer knew all of the data and other corporate information relevant to Atco’s rate applications.  Here, there is only a general knowledge of claims practices and company personnel.

[41]    I conclude that the connections between this case and the work Mr. Fishman did at Manulife are not sufficient to raise the presumption that he had obtained confidential information that could be used in this case.

Visual Vestibular Mismatch Leads to $90,000 Non-Pecuniary Assessment

Adding to this site’s archived cases addressing visual vestibular mismatch following a vehicle collision, reasons for judgement were released today by the Supreme Court, assessing damages for such an injury.
In today’s case (Miolla v. Fick) the Plaintiff was involved in a modest 2013 rear end collision.  The Defendant admitted fault but argued that given the minor nature of the crash the Plaintiff was not injured.  The Court rejected this argument and concluded the plaintiff suffered from soft tissue injuries and a visual vestibular mismatch which caused a chronic balance problem which largely interfered with the Plaintiff’s ability to work.  In assessing non-pecuniary damages at $90,000 Mr. Justice Myers provided the following reasons:

[30]    Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch.  In his direct evidence he briefly described that as disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo.  A longer explanation was provided in his report:

Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. Complaints of dizziness caused by checkered floors, busy carpets or patterned tiles is seen. Dislike of elevators and escalators, which caused dizziness is common. Busy television programs, such as car chases and hockey games cause dizziness. Scrolling a computer causes dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation.

[31]    He concluded that this was caused by the accident:

Onset of dizziness subsequent to the accident means, in my opinion, that the accident is the [probable] cause. There are measured abnormalities on balance tests. She has an abnormal result on Computerized Dynamic Posturography (CDP), compatible with a disturbance involving the balance system of the inner ear. This is an objective test. She has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with an abnormality on the left side. This is an objective test. OVEMP measure the macula of the utricle, one of the gravity detecting organs of the inner ear…

[42]    …I accept Dr. Longridge’s report and conclusion.

[61]    A closer case – in fact one remarkably similar to the one at bar – is Moukhine v. Collins, 2012 BSCS 118.  In that case, the 53-year-old plaintiff also suffered visual-vestibular mismatch.  That impaired his ability to work as a computer programmer by 50%.  His previous activity level was curtailed, as was the nature and extent of his outdoor activity level.  Damages were assessed at $90,000.  Based on that, I assess general damages at $90,000.

Sexual Assault and Surreptitious Videotaping Lawsuit Survives Defendant's Bankruptcy Protection

Brief reasons for judgment were released recently by the BC Supreme Court, Duncan Registry, addressing whether a Plaintiff can continue with a lawsuit for damages for alleged historic sexual assault in the face of a Defendant filing for bankruptcy protection. In short the Court held this was possible.
In the recent case (Lundahl v. Poilievre) the Plaintiff was suing for damages alleging historic sexual assault and surreptitious recording.  The Court provided the following reasons confirming both causes of action can survive bankruptcy protection:
[4]             It is clear that the claim for sexual assault would, under s. 178(1), survive a discharge of bankruptcy.  What may be more debatable are the components of the action dealing with the surreptitious videotaping.  It was that latter part of the claim that the defendant focused on in opposing the stay.
[5]             In my view, the main part of the action is the sexual assault.  In spite of the defendant having pled guilty in a criminal trial, the videotaping may still be part of the evidence in the sexual assault trial as part of the background.  So irrespective of whether the claim for the surreptitious videotaping alone would survive the bankruptcy, it is nevertheless intimately wrapped up with the other part of the action.
[6]             The material prejudice to the plaintiff of the stay with respect to the sexual assault claim is that the action will be materially delayed, and in the interim she is suffering psychological harm.  I think I can take judicial notice of the fact that once an action is commenced, victims prefer to have their trials sooner rather than later. In my view, s. 69.4 should be applied here to lift the stay.
[7]             In addition, it appears to me the claim falls within a category of claims that the courts have not been willing to stay.  It would be equitable, as well, under s. 69.4, to lift the stay.
[8]             The stay will therefore be lifted with costs to the plaintiff.

Rule 11-6(8) Interpreted to Limit Scope of Expert Witness File Disclosure


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope of expert witness file disclosure requirements under Rule 11-6(8).  In short the court held documents created after the preparation of the expert opinion need not be disclosed.
In today’s case (First Majestic Silver Corp. v. Davila) the Plaintiff made a mid-trial application requesting “notes made by the Defendants’ experts during the course of the trial when the Plaintiffs experts were testifying“.  The Defendant opposed arguing the new rules of court did not require production of such records.   Mr. Justice Myers agreed and provided the following comments:

[8]      While the plaintiffs referred to Rule 11-6(8) at the outset of their argument, the main thrust of their submission was based on the common law prior to the new rules.  I will elaborate that after I summarise the defendants’ position.

[9]      The defendants argued that the Rule replaced the common law.  They submitted that the rule limits production to what was clearly stated in the rule, namely the “contents of the expert’s file relating to the preparation of the opinion” [emphasis added].  Since their experts had already delivered their reports and therefore formulated their opinions (beyond which they were not entitled to go when giving evidence) the notes made during trial could not relate to that.

[10]    In reply, the plaintiffs argued that the only thing the rule does is to push back the time at which the expert’s file must be disclosed.  Under the prior case law, this was when (and only if) the expert takes the stand, and then the whole file need be disclosed.  They argue that the rule requires the same disclosure to be made, but in advance.  Relying on Lax Kw’alaams, they submit that there is no distinction between the different capacities of an expert when generating the file materials.  Rather, the whole file relates to an expert’s credibility once he or she takes the stand and must be produced.

[11]    On the plain wording of the rule, I do not agree that it only modified the timing for the disclosure.  The words “relating to the preparation of the opinion” must be given some meaning.  In effect the rule settles the gray area dealt with in the decisions cited above.  I therefore decline to order the notes made during the course of the trial.

Winners and Losers: More on Costs Consequences and Formal Settlement Offers


How can a Plaintiff who is awarded damages following a personal injury trial end up owing ICBC money?  The answer relates to the costs consequences that can be triggered by formal settlement offers.  I’ve discussed this topic previously and two sets of reasons for judgement were released this week by the BC Supreme Court further demonstrating this reality.
In the first case (Dempsey v. Oh) the Plaintiff was injured in a bicycle accident when he was struck by the Defendant’s vehicle.  In the course of the lawsuit ICBC made a formal settlement offer of $40,000.  As trial neared ICBC increased their formal offer to $165,000.  The Plaintiff rejected this and proceeded to trial.  At trial the Court made some critical findings relating to the Plaintiff’s credibility and awarded damages of just over $20,000.
Following trial ICBC asked for an order pursuant to Rule 9-1(5) that the Plaintiff pay all of the Defendant’s costs following their first formal offer.  The Plaintiff objected to such a result arguing that “if he is ordered to pay the defendant’s costs he will end up owing it money“.  Mr. Justice Myers rejected this argument and ordered that the Plaintiff pay the Defendant’s post offer costs.  In rejecting the Plaintiff’s submission the Court made the following comment “It is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer.  That would defeat the purpose of the Rule and does not accord with common sense”.
On another note, this case is worth reviewing in full for the Court’s discussion of Rule 14-1(10).  The Defendant argued that the Plaintiff should be deprived of his pre-offer costs as there was no sufficient reason to sue in Supreme Court.   Mr. Justice Myers rejected this argument finding that when the lawsuit was started the Supreme Court was an appropriate venue.  In making this finding the Court provided the following useful reasons:
[11]    In part due to the loss of income, this was a more complicated case than Ghelen.  This action was commenced approximately six months after the accident.  At that point I find it was reasonable for the plaintiff to have commenced the action in this Court because he was reasonably entitled to see the impact of the accident on his prior condition.  There is nothing in the rules which imposes a cost penalty on a party who files its suit quickly after its cause of action arises.  And, in Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal held that there is no ongoing obligation on a party to assess his action as it progresses in the Supreme Court in order to consider whether it should be moved to Provincial Court.
In the second case released this week (Miller v. Boughton) the Plaintiff was injured in a 2006 collision.  She sued for damages and her case went before a jury.  The trial lasted 7 days.  Prior to trial ICBC made a series of escalating formal settlement offers starting at $22,000 with the final offer made shortly before trial topping out at $62,500.
The Plaintiff rejected these offers and proceeded to trial.  The Jury found the Plaintiff 45% at fault for the crash and the Defendant 55% at fault.   After taking this split into account the Jury’s award was a modest $3,880.  ICBC’s motion for post offer costs and disbursements was granted.  After factoring these in the Plaintiff likely ended up owing ICBC a significant amount of money.   (UPDATE September 12, 2011 – click here for follow up reasons confirming the Defendant’s costs were assessed at over $42,000)
Cases such as these illustrate the important lesson that formal offers create a “loser pays” system which could result in significant costs swings following trial.  When considering ICBC formal settlement offers it is important to keep this in mind when deciding whether to accept the offer or proceed to trial.

More on Injury Claims, Credibility and Cross-Examination

When personal injury claims go to trial a Plaintiff will have their allegations of injury tested through cross-examination.  If this process reveals enough inconsistencies in the Plaintiff’s direct testimony it can result in a poor finding of credibility by the trial judge which in turn will likely effect the outcome of the case.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Dempsey v. Oh) the Plaintiff was injured when his bicycle was struck by a van driven by the Defendant.  The Plaintiff sued for damages.  The issue of fault was admitted by the motorist leaving the Court to deal with the issue of value of the claim.  The Plaintiff sought damages for a variety of alleged losses including past and future loss of income.  The Court dismissed much of the Plaintiff’s claim finding that the accident caused little more than a mild whiplash injury.
The main reason behind this result was an unfavourable finding of the Plaintiff’s credibility.  Mr. Justice Myers found that the Plaintiff was not candid about his injuries and provided the following critical reasons:

[38]    As Mr. Dempsey’s counsel acknowledged in argument, Mr. Dempsey’s credibility is central to this case.  Having reviewed the medical evidence, I will now comment on that.

[39]    Mr. Dempsey’s description of his condition prior to his accident was contradicted by the clinical records of Dr. Mintz, the cross-examination of Dr. Mintz and the cross-examination of Mr. Dempsey.  I am mindful of the cautions with respect to the use of clinical records that N. Smith J. helpfully summarised in his recent decision in Edmondson v. Payer, 2011 BCSC 118, which was released after the case at bar was argued.  However, the differences between the clinical records and Mr. Dempsey’s testimony are not minor; in fact, they are quite glaring and significant.  Further, Dr. Mintz testified as to his notations and Mr. Dempsey adopted them in his cross-examination.

[40]    It is apparent from the medical records and evidence that Mr. Dempsey greatly downplayed his back problems prior to the accident.  In his direct evidence, he described it as minor aches and pains.  When confronted with his medical history he acknowledged that it was at times “excruciating”.

[41]    The description as “minor” also flies in the face of the pain medications that he was taking.  In his direct examination Mr. Dempsey said that he often threw away expired medication.  That evidence was contradicted in cross-examination.

[42]    When Mr. Dempsey was cross-examined on his pre-accident medical history, his constant response was to admit that he had had pain, but that he was able to manage it with the pain medication and therefore function.  However, even that was not correct.  On cross-examination, he agreed that the clinical records of Dr. Mintz were accurate and include complaints of inability to sleep, drive, sit and to stand on his right leg.

[43]    In his direct examination, Mr. Dempsey was adamant that he played hockey up to the time of the accident.  However, on cross-examination, when confronted with the medical records, he agreed that he had given it up several years before the accident due to concerns about his back.

[44]    Mr. Dempsey downplayed his use of heroin, and as I said, he falsely stated that he had stopped using it in April 2004 (above, para. 24).

[45]    Mr. Dempsey blamed the accident for his alleged near-complete inability to work for an extended period after the accident.  However, he never described why he could not use the phone to add to or farm his database and why he could not drive.  Simply put, while Mr. Dempsey said he had pain he never specified how it stopped him from being able to perform his job functions.

[46]    In the context of the defendant’s theory that Mr. Dempsey was spending time running another business he had incorporated rather than spending time on his real estate practice, he was cross-examined closely on a frequently recurring cryptic entry in his Day-timer.  He said he did could not remember what that referred to.  Given the number of times the entry appeared that is not credible, whether or not it did relate to another business project.

[47]    I do not find Mr. Dempsey to be a credible witness.  There is no reason to believe that he was more truthful about what occurred after the accident than he was about his condition before it.

For more on this topic you can click here to read my archived posts dealing with Plaintiff credibility in BC injury litigation.

Can Interest on Unpaid Special Damages be Recovered in a Personal Injury Claim?


Special damages are out of pocket expenses incurred as a result of the intentional or negligent actions of others.  In personal injury lawsuits the most common special damages relate to medical treatments such as physiotherapy, massage therapy, medications and similar expenses.
When a Plaintiff pays their own special damages and succeeds at trial they are entitled to be reimbursed for these expenses along with a modest amount of interest under the Court Order Interest Act.  What about expenses that were not paid before trial where the medical providers charge interest on the unpaid accounts?  Can a plaintiff recover damages for these additional expenses?  Reasons for judgement were released today by the BC Supreme Court considering this issue.
In today’s case (Bortnik v. Gutierrez) the Plaintiff sued for injuries sustained as a result of a 2007 BC motor vehicle collision.  Mr. Justice Myers found that the Plaintiff had “exaggerated his injuries“.  Despite this finding the Court concluded that the Plaintiff suffered “some minor whiplash injuries as a result of the accident” and awarded the Plaintiff $20,000 for his non-pecuniary damages.
The Plaintiff also was awarded damages to account for the expenses related to some of his post accident chiropractic treatments.  The plaintiff did not pay these accounts before trial and the chiropractor charged interest on the unpaid accounts.  The Plaintiff asked the court to award damages to account for this interest.
Mr. Justice Myers refused to make this award finding as follows:

[54]    It appears to me that the plaintiff acted reasonably in seeking chiropractic treatment.  I would allow the expenses until December 31, 2009, when he was largely recovered.

[55]    With respect to interest, while counsel have found some authority dealing with interest on disbursements, counsel advise they have not found any case dealing with interest on special damages.  I therefore approach the matter on first principles.

[56]    If the plaintiff had paid the chiropractor, he would have been limited to interest as provided by the Court Order Interest Act, R.S.B.C. 1996, c. 79.  Assuming that interest on special costs may in some instances be recoverable as damages – something which I need not decide – it follows from my finding that the plaintiff has not proved a past wage loss that he cannot hold the defendants responsible for his inability or failure to pay the bills as they became due and owing.  He therefore is not entitled to claim interest as damages.

The BC Supreme Court has recently allowed interest on disbursements levied by service providers to be recovered in a personal injury case.  In that decision the Plaintiff’s ability to pay for the disbursement was also a relevant factor.  Today’s case leaves the door open for a similar result in appropriate circumstances for unpaid special damages.

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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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