Tag: Mr. Justice Riley

Court Declines to Award Plaintiff Double Costs Where Adverse Liability Finding was a “Live Possibility”

Often times when a plaintiff is awarded damages beyond their formal settlement offer the BC Supreme Court awards double costs.  Such an outcome is discretionary and not automatic and occasionally double costs are declined.  Reasons for judgment were published this week by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In this week’s case (Enns v. Corbett) the Plaintiff was injured in a collision and sued for damages.  The Plaintiff was awarded damages approximately $30,000 above their formal settlement offer.  Despite this the Court declined to award double costs noting there was a ‘live possibility‘ of an adverse liability outcome.

In reaching this conclusion Mr. Justice Riley provided the following reasons:

[7]             I do not agree with the plaintiff that the offer ought reasonably to have been accepted as contemplated in Rule 9-1(6)(a). Rather, I agree with the defendant that at the time the offer was made, there was uncertainty as to the strength of the plaintiff’s claim, due in large measure to issues of contributory negligence and potential apportionment of liability. Despite the live issues as to liability, the plaintiff’s offer expressly rested on the premise that the defendant would be found “fully liable” for the collision; it made no allowance for the contingent risk that the plaintiff might be found contributorily negligent, which was a live possibility based on the evidence available to the parties when the offer was made. To quote from the defendant’s submission, the plaintiff’s offer “did not account for the real risk that the plaintiff’s claim might have been dismissed entirely or that liability might be apportioned, based on information available to the parties at the time”. As explained in Owen v. Folster, 2019 BCSC 407 at para. 12, the plaintiff’s offer did not put forward a “genuine compromise or an incentive to settle” in view of the litigation risks, such that the defendant did not act unreasonably in declining to accept it.

[12]         In my view, the most telling feature of this case is the fact that the offer to settle was premised on the plaintiff’s position that the defendant would be found fully liable for the collision, when there were live issues as to apportionment of liability. In these circumstances, it cannot be said that the offer “ought reasonably to have been accepted”. The other factors are less important in this particular case. The judgment obtained at trial was higher than the amount in the offer, but only marginally so as a proportion of the overall amount in issue. And, although the defendant’s insurance coverage placed her at some degree of financial advantage in terms of the decision to proceed to trial, there is no evidence that the defendant or her insurer used their financial strength in an untoward manner. The plaintiff was successful at trial and is therefore entitled to costs of the action at Scale B, but not double costs.

Plaintiff Lawyer Copies of MSP and Pharmanet Printouts Subject to Litigation Privilege

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, finding that plaintiff’s counsel was correct in listing ‘copies’ of MSP and pharmanet printouts as privileged and refusing to produce a copy to the Defendant.

In today’s case (Kang v. Sahota) the plaintiff was advancing an injury claim and in the course of doing so plaintiff’s counsel ordered copies of their clients MSP and Pharmanet printouts.  These were used as tools in deciding what further records to order to advance the claim. The Defendant brought an application for production of these records.  The Court dismissed this noting that counsel was correct to list these as privileged and the application should seek production of these directly from the Ministry of Health.  In reaching this decision Mr. Justice Riley provided the following reasons:

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“Unlawful” Surreptitious Recording of Defense Medical Appointments Not Admissible At Trial

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, holding that a Plaintiff’s surreptitious recording of defence medical exams are not admissible at trial.

In today’s case (Cook v. Kang) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the defendant obtained a court order that the Plaintiff be assessed by defence selected physician.  The Plaintiff also consented to see a second defence physician on similar terms as the court ordered appointment.

The Plaintiff surreptitiously recorded both appointments.  This came to light during trial and the existence of the recordings was not disclosed to the defence ahead of time.  The Court ruled that the recordings were not admissible on two grounds, first because they were not listed in compliance with the rules, second that recordings of court ordered medical appointments are “unlawful” without an express term permitting this.

In excluding the evidence Mr. Justice Riley provided the following reasons:

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$65,000 Non-Pecuniary Assessment for Chronic Intermittent Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in a vehicle collision.

In today’s case (Juelfs v. McCue) the Plaintiff was involved in a 2014 collision that the Defendants accepted fault for.   The crash resulted in a variety of injuries some of which continued to linger to the time of trial and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Riley made the below findings and provided the following reasons:

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$72,000 Part 7 Benefits Deduction Ordered Following Tort Trial

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering a reduction of a trial award by over $72,000 to account for paid or payable part 7 benefits.

In today’s case (Sangha v. Inverter Technologies Ltd.) the Plaintiff was injured in a collision.  Following a 10 day trial the Plaintiff’s claim was assessed at $215,380.  Subsequently the Defendants applied to have this assessment significantly reduced by part 7 benefits that were paid or payable to the Plaintiff.  In reducing the judgement by over  $72,000 Mr. Justice Riley provided the following reasons and provided significant weight and reliance on an ICBC adjuster’s evidence that such benefits would be paid:

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$75,000 Non-Pecuniary Assessment for Soft Tissue Injuries Resulting in Chronic Pain

Reasons for Judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries.
In the recent case (Kagrimanyan v. Weir) the Plaintiff was involved in a rear-end collision caused by the Defendants.  Liability was admitted.  The crash caused various soft tissue injuries which led to chronic pain.  Full resolution of the Plaintiff’s symptoms was not expected.  In assessing non-pecuniary damages at $75,000 Mr. Justice Riley provided the following reasons:

[54]         I must consider the nature of Ms. Kagrimanyan’s injuries, and the impact of those injuries on Ms. Kagrimanyan’s quality of life. In terms of the immediate or short term effects of the accident, Ms. Kagrimanyan suffered a neck sprain and soft tissue injuries causing intermittent headaches, neck and upper back pain, and lower back pain extending into her leg. The headaches, neck and upper back pain have largely resolved over time. However, Ms. Kagrimanyan continues to suffer from lower back pain which has become chronic. There is a consensus amongst the medical experts who testified at trial that Ms. Kagrimanyan has plateaued in her recovery, and that she is likely to have some degree of continuing pain, made worse by fatigue or prolonged physical effort, including standing or even sitting in one position for an extended period of time.

[55]         In assessing the extent of Ms. Kagrimanyan’s loss, I must take into account that at the time of the accident she was 35 years old, and she is now 40. According to the evidence, she will continue to suffer from some degree of pain, at least on an intermittent basis, for the balance of her life. Ms. Kagrimanyan may be able to better manage or cope with her limitations through improved physical conditioning, but I find based on all of the expert medical testimony that Ms. Kagrimanyan is not likely to achieve full recovery. This is a significant factor when determining a damage award that will fairly and reasonably compensate Ms. Kagrimanyan for the injuries she has suffered and the resulting impact on her life.

[56]         I also accept that Ms. Kagrimanyan has become deconditioned over time, and that with improved physical fitness she may be better able to manage her discomfort and limitations. On this point, I accept the testimony of Dr. Gray that while enhanced conditioning may improve Ms. Kagrimanyan’s ability to cope with pain, it is unlikely to eliminate the pain itself.

[57]         In terms of the overall effect of the accident on Ms. Kagrimanyan’s quality of life, I find that the injuries and resulting chronic pain have impacted and will continue to impact her recreational, social, and domestic activities. She is unable to engage in some of the recreational pursuits she used to enjoy. She is still able to socialize and do housework, but finds these things more difficult than they used to be. She has also experienced and will continue to experience pain and fatigue at work. As Dr. Gray put it, Ms. Kagrimanyan’s injuries have left her with a mild form of disability. While able to remain “durably employed”, Ms. Kagrimanyan experiences increasing discomfort over the course of the work day, and as the work week progresses.

[58]         I conclude that Ms. Kagrimanyan should be awarded non-pecuniary damages of $75,000. This quantum of damages takes into account all of the non-pecuniary impacts of the accident, including added difficulty in performing household tasks. Although Ms. Kagrimanyan has made a discrete claim for housekeeping as a cost of future care, the particular nature of Ms. Kagrimanyan’s injuries and their impact on her ability to do housework is, in my view, properly addressed under the rubric of non-pecuniary damages. The only exception is with respect to heavy duty or seasonal housework, a discrete category of housework that can be dealt with by way of a pecuniary damage award as explained below.

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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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