Tag: Mr. Justice Savage

1/3 Damage Reduction For Plaintiff's "Failure to Mitigate"


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.
In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision.  The Plaintiff suffered from chronic pre-existing pain.  The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury.   Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’.  In doing so the Court provided the following reasons:

[42] In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed, [2001] S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.  Red Deer College v. Michaels(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.  In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

[43] In his very thorough report, Dr. Armstrong gave treatment recommendations.  Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court.  Those recommendations included (1) a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2) minimizing passive therapies; (3) supervised stretching and posture improvement under the guidance of a physiotherapist; (4) a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5) counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7) time off work to pursue rehabilitation.

[44] The plaintiff has largely not followed these recommendations.  There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance.  She did not embark on a progressive program to strengthen core muscles.  There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management.  Hsu did not take time off work to pursue rehabilitation.  Hsu also continued with, and seeks compensation for, continuing passive therapies.

[45] For example, Hsu claims as special damages acupuncture treatments covering a period from March 2007 to June 5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed “rehabilitation treatments” ($760); and various prescription medications ($194.72).

[46] Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

[47] The importance of carrying out those recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

For more recent BC case summaries addressing failure to mitigate you can click here to access my archived posts and here for more recent case summaries addressing pain and suffering awards for sacroiliac joint injuries.

$55,000 Non-Pecuniary Damages Assessment for Bimalleolar Ankle Fracture


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issues of fault and value of injuries sustained in a 2005 slip and fall accident in Vancouver, BC.
In today’s case (Druet v. Sandman Hotels, Inns & Suites Ltd.,) the Plaintiff was visiting Vancouver, BC and was staying at a hotel operated by the Defendant company.  As she entered the hotel she slipped on the floor and fractured her ankle.  The injury requires surgical correction.
The Court found that both parties were equally at fault for the incident.  The Defendants were found at fault for having unreasonably slippery tiles in their lobby knowing how often patrons tracked water into the lobby.  The Plaintiff was found partly at fault for failing to take reasonable care for her own safety.  Paragraphs 14-62 are worth reviewing for the Court’s discussion of fault.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Savage made the following findings with respect to the severity of the Plaintiff’s injury:

[11]        Druet suffered a bimalleolar ankle fracture.  She had open reduction surgery.  The break was fixed with metal screws.  The metal screws were removed by a further operation.  She had ongoing complaints of stiffness and lack of range of motion.  She had a lack of dorsiflexion and could not invert or evert her right hindfoot very well.  In June 2008 she had scar tissue surgically debrided and a gastrocnemius recession was performed.

[12]        By 2009 Druet’s condition was stabilized, but she had stiffness and arthrofibrosis of her right ankle, related to her bimalleolar ankle fracture.  She is not considered at high risk for future injuries, provided she stays within reasonable restrictions.

[13]        She walks with a slight limp and can no longer run as she once did, but can walk significant distances, which she does with walking partners.  She has some concerns about the work she does as a nurse, but is still able to perform the work required to the satisfaction of her current employer…

[66]        I have described the injuries above.  As a result of those injuries the plaintiff had three surgeries, although two were in succession.  She had implantation of a plate, a rod and surgical screws in March 2005 which were removed in September 2005.  Her ankle was debrided in June 2008.

[67]        Druet missed a total of three months of work as a licenced practical nurse arising from the injuries and surgeries.  She walked with crutches for a short time after the Accident while recuperating.  She had limited physiotherapy in 2005 but not since.  She wears orthotics.

[68]        Druet has substantially resumed her previous activities, except running.  She now walks two miles a day, five days a week.  She did substantial walking during a vacation to Europe in 2006 and a holiday in New York in 2008.  She can walk five kilometres.  She participates in 5K walks and completes them 10 to 15 minutes slower than when she ran. ..

In my opinion non-pecuniary damages fall between the two parties’ positions.  I award $55,000 under this head.

Landlord Liable for Guest's Fall From Balcony

(UPDATE November 18, 2011The case discussed below was upheld in reasons for judgement released today by the BC Court of Appeal.  These can be accessed here)

Reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, discussing the duties of landlords to take reasonable steps to make sure buildings they own are safe for tenants and guests.
In today’s case (Jack v. Tekavec) the Defendant owned an apartment in Gold River, BC.  He rented this out to a third party who invited the Plaintiff over.  While visiting the Plaintiff “leaned against a balcony railing which gave way.   (He) plummetted three stories to the ground and was badly injured“. The Plaintiff sued the building owner arguing he was careless for failing to keep the balcony railing in good repair.  Mr. Justice Savage agreed.  In finding the Defendant at fault for the Plaintiff’s injuries the Court stated as follows:

[38]         The evidence establishes that the defendant, as owner and operator of the apartment block, is a landlord pursuant to s. 1 of the RTA.  I find that the defendant is responsible for the repair and maintenance of the deck and owes a duty of care pursuant to s. 6 of the Act to the guests of his tenants including Jack.

[39]         That duty of care includes, in my opinion, a duty to inspect.  The duty to inspect is part of the duty of the landlord to take reasonable care in carrying out the responsibility for the repair of premises under the Act. ..

[44]         In this case the defendant knew of a problem with the balcony railing before the tenancy commenced.  The tenants requested that he repair the balcony railing but he chose not to do so.  The defendant was also aware that the tenant, through Billy, took it upon herself to effect a repair when he did not respond to the requests.  The defendant saw that the work done by the tenant was not done properly.

[45]         The defendant knew that Billy, who did the work, was not skilled.  Although this repair was his responsibility, as the landlord responsible for maintenance, and he knew the work was done wrongly, he chose not to fix it.  He was well aware of the danger of improper work on the balcony railing.

[46]         In my opinion Tekavec owed a duty of care to Mark and to Mark’s guests including Jack.  The standard of care required that he respond to requests of tenants to inspect the tenanted premises regarding the safety problems they raised.  The standard of care also required that, if a tenant did work on a balcony railing that he saw was wrongly done, that he inspect and repair or cause to have repaired the balcony railing himself.

[47]         By choosing inaction he breached the standard of care of a reasonable landlord responsible for such maintenance.  His breach of the standard of care was a direct cause of the accident and Jack’s injuries.

[48]         In the result, I find Tekavec liable to Jack for damages.

The Plaintiff’s damages included an award of $100,000 for non-pecuniary loss.  In arriving at this figure the Court noted the extent and severity of the injuries which were summarized as follows:

[15] Briefly, Jack’s multiple injuries included a broken pelvis, fractured ribs, fractured vertebrae, and internal injuries resulting in hernias.  While in hospital he developed pneumonia requiring a tracheotomy.  His pelvis fracture required a metal plate and screws.  He pelvis fracture healed but he has lost 2” in height.  He now weighs less than 200 lbs and walks with a slight limp.  After six months he returned to work but is now unable to do heavy lifting.  ..

[63]         I have earlier briefly described Jack’s injuries (paras. 13, 14, and 15).  I will not repeat that description here.  His diagnosis was as follows:

(a)        Vertically instable fracture of left side of pelvis involving fractures of the sacrum and symphyseal disruption;

(b)        Stable disruption of the right SI joint; bilateral transverse process fractures of L4 and 5 vertebra; left transverse process fractures of the Li and L2 vertebra;

(c)        Cecal volvulus resulting in right hemicolectomy; facial fractures not requiring intervention;

(d)        Post trauma aspiration pneumonia with respiratory compromise requiring tracheostomy;

(e)        Fracture of left 9th and 10th rib;

(f)         Post operative problems included mild infection of lower part of the abdominal incision; incisional hernia requiring surgery; mild malunion of let hemi pelvis resulting in 1 to 1.5 centimeter shortening of left leg; degenerative changes at the lumbar spine involving L4-5 and 12-S1 levels.

(g)        Pelvic x-rays revealed slight malunion with the left hemi-pelvis being approximately 1 to 1.5 centimeters higher than the right; posterior screw is slightly bent in keeping with this shift in position; hip joints are normal on x-ray; lumbar spine x-rays show degenerative changes at L4-5 level and L5-S1 level. …

[70] In my view, an appropriate award in these circumstances for past and future pain and suffering, loss of amenities and other non-pecuniary losses is $100,000.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

More on BC Supreme Court Costs – Rule 57(10) and Judgments Below $25,000

(Note: The below case was upheld by the BC Court of Appeal.  You can find the BCCA decision here.)
As recently discussed, when advancing an ICBC Claim in Court one of the first choices to make is whether to sue in BC Supreme Court or Small Claims Court.   When a Plaintiff successfully sues in the BC Supreme Court they are usually entitled to “costs” from the Defendant.  Costs are intended to offset some of the expenses of requiring a formal lawsuit to reach a resolution to a claim. The Small Claims Court does not have the ability to award Costs.
One of the exceptions to this general principle of giving successful Supreme Court plaintiffs “Costs” is set out in Rule 57(10) which holds that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders.
So if a Plaintiff is awarded under $25,000 (the current limit of the Small Claims Court) in an ICBC or other BC Injury Claim does this mean they will be deprived of Court Costs?  The answer is not necessarily.  Our Supreme Court has held time and time again that a Plaintiff may have sufficient reasons for suing in Supreme Court despite the fact the final outcome may be an award below $25,000 and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this.
In today’s case (Gradek v. DaimlerChrysler Financial) the Plaintiff was injured in a BC car crash.  He sued in the BC Supreme Court and was awarded just below $10,000 in total damages (you can click here to read my article summarizing the trial judgement).  The Plaintiff asked for Costs.  The Defendants opposed this arguing that since the value of the case within the Small Claims Courts Monetary Jurisdiction the Plaintiff did not have “sufficient reason” to sue in the Supreme Court.
Mr. Justice Savage rejected this argument and summarized the law relating to “sufficient reason” to sue in the BC Supreme Court as follows:

[18] In my opinion the approach taken by the defendants is too narrow and not supported by an interpretation of the Rule or by the authorities.

[19] The proviso in Rule 57(10) is “unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders”.  The Rule does not define “sufficient reason”.  There is nothing in the Rule that limits the extension of the term “sufficient reason” to matters relating to the quantum of the claim.  ..

[27] There are relevant authorities in this court.  In Faedo v. Dowell, 2007 BCSC 1985, a case predating Reimann, Curtis J. held that a variety of factors gave rise to “sufficient reason” within the meaning of Rule 57(10).  The Court referred to the plaintiff’s beliefs about her claim, the defendant’s denial of liability, challenge to the plaintiff’s credibility, the plaintiff’s inexperience and demeanor, the reasonable requirement to have counsel, and the fact that costs of counsel were only recoverable in Supreme Court.

[28] Master Patterson in Garcia v. Bernath, 2003 BCSC 1163, 18 B.C.L.R. (4th) 389 (S.C.), held that a number of factors including whether there were injuries at all, can give rise to sufficient reason.

[29] In Johannson v. National Car Rental (Canada) Inc., 2009 BCSC 1284, Barrow J., referred to Reimann, and noted in obiter dicta that other reasons for proceeding in Supreme Court include those identified in Kuehne.

[30] In Tucker v. Brown, 2008 BCSC 734, Cole J. applied Reimann noting the importance of discovery procedures in determining liability in a “no crash no cash” case.

[31] In Kanani v. Misiurna, 2008 BCSC 1274, Humphries J. considered factors such as a denial of liability in finding “sufficient reason” under the Rule.  To like effect is the decision in Ostovic v. Foggin, 2009 BCSC 58.

[32] In the result, in my view, the term “sufficient reason” within the meaning of the rule encompasses a number of considerations including considerations which do not inform the quantum of the claim.

Mr. Justice Savage went on to award the Plaintiff his trial costs finding that despite the fact that the case could have been tried in Provincial Court given its monetary value the Plaintiff had sufficient reason to sue in the Supreme Court for a variety of reasons including the fact that the examination for discovery evidence was useful at trial and that the Plaintiff would have been “out-matched” if he sued the insured defendant without the assistance of a lawyer in small claims court.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.

$8,000 Non-Pecuniary Damages for "Not Substantial" Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Gradek v. DhaimlerChrystler) awarding a Plaintiff just under $10,000 in total damages as a result of a 2006 BC Car Crash.
The collision occurred in an intersection as the Plaintiff was attempting to drive through.  The Defendant made a left hand turn in front of the Plaintiff.  Both Liability (Fault) and Quantum of Damages (Value of the case) where at issue.  The Court found that the left hand turner was 100% responsible for the crash. Paragraphs 21-34 of the case are worth reviewing for a good discussion of the law concerning fault for intersection crashes.
Mr. Justice Savage found that the Plaintiff “exaggerated the impact of his injuries” and that he suffered nothing more than relatively minor soft tissue injuries.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $8,000 the Court summarized the Plaintiff’s injuries as follows:

[35] Gradek’s evidence regarding the impact of the injury on him is at times contradictory and confusing.  Gradek evidence contradicts that of his physician, Dr. Milne, who was called as a witness by Gradek, was qualified as an expert, filed an expert report and testified.

[36] Gradek description of the impact, however, accords with the somewhat unusual damage caused to the left front bumper of his vehicle.  With respect to the impact of the accident on him, I accept the evidence of Dr. Milne where Gradek’s evidence conflicts with that of Dr. Milne.  I find that Gradek has exaggerated the impact of his injuries.

[37] Dr. Milne testified that he found objective signs of injury on examination which he conducted on May 15, 2006.  The accident occurred on May 13, 2006.  Gradek was seen in Dr. Milne’s office but by another physician on May 14, 2006.  Gradek was diagnosed with soft tissue injuries, namely, a tender Trapezii muscles and tender Latissimus dorsi muscle.  He was prescribed Flexiril for ten days and Naprosyn for ten days.  Gradek was prescribed physiotherapy.  He was off work.  On May 23rd, he was much better but lower back and neck pain persisted as did the objective signs of injury.  Gradek was advised to continue to physiotherapy and to return to work on May 29, 2006.

[38] Gradek was seen again on May 30, 2006 he said he was 50 percent improved but unable to return to work.  He was advised to return to work on June 5, 2006, which he did.  Gradek was seen again on June 19, 2006 and July 3, 2006.  He had continuing minor complaints that were not severe enough to warrant prescription medication.

[39] Gradek was next seen in December 2006 where he reported minor complaints for two days, but had been fine for the last four to five months.  He was prescribed Naprosyn for five days.  Gradek was not seen again until May 5, 2007 where he had a headache and neck pain for three days.  Gradek reported that he had no pain between August 2006 and May 2007 other than for two days in December 2006 and three days in May 2007.

[40] Gradek was last seen by Dr. Milne June 15, 2009.  There were no specific complaints although he was still experiencing occasional right side pain.  This did not prevent him from engaging in vigorous exercise.  I accept Dr. Milne’s summary as a fair summary of the injuries and consequences with one exception, as noted below.  Dr. Milne summarizes:

In summary, Mr. Gradek Henryk was involved in a motor vehicle accident in May 13, 2006.  He incurred soft tissue injuries to the neck and lower back which resulted in him missing 4 weeks of work in 2006.  His injuries were not substantial and he shows no evidence of long term damage as a result of this motor vehicle accident.

The parties agree that Dr. Milne’s reference to four weeks of missed work in 2006 is in error as earlier in the report he specifies three weeks which is also consistent with employer records.


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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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