Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit alleging a breach of the Occupier’s Liability Act.
In today’s case (Hamilton v. The Owners, Strata Plan VIS3782) the Plaintiff broke his hip after falling while leaning on an armrest of a bench owned by the Defendants. The armrest “broke away and the plaintiff says that unexpected loss of support put him off balance. His body twisted to the left and he fell to the ground.”.
The Plaintiff sued alleging negligence and a breach of the Occupier’s Liability Act. The Court found that the armrest was indeed defective from natural wear but the Defendants were not liable as they did not know about this and applying a reasonable standard of inspection likely would not have known about it. In dismissing the claim Mr. Justice Smith provided the following reasons:
 In this case, there is evidence that this type of bench, when exposed to the elements on a long-term basis, does deteriorate over time and that the bench broke at the very spot where the deterioration is most likely to occur. That is evidence from which it can be inferred, on the balance of probabilities, that there was some defect or deterioration in the wood that caused the armrest to break off when the plaintiff put his weight on it. I find that the plaintiff has satisfied the first branch of the test referred to in Thomas.
 On the second branch of that test, the question is whether the presence of that defect amounted to an objectively unreasonable risk of harm. That depends on whether the Strata knew or reasonably should have known about it, and whether a reasonable owner, knowing about the defect, would have repaired or removed the bench before the date of the plaintiff’s fall. The standard is one of reasonableness, not perfection.
 The evidence is clear that the Strata Council had received no complaints about the bench and was not aware of any defect. The evidence of Ms. Lennard is that benches were inspected regularly to ensure they were secure and in good condition. That inspection was undoubtedly more cursory or less exacting than what the plaintiff’s experts suggest, but there is no evidence that residents of a strata who volunteer to serve on a garden committee had or should have had the same knowledge as experts in wood products.
 Dr. Nichols said the purpose of the inspection he recommends is to “simulate the strains or stresses applied to the wood structure during use.” Mr. Moffatt said, on discovery, that the benches were used “extensively and intensively during the summer months.” As counsel for the Strata notes, the “ordinary stresses and strains” were not just simulated, but were actually being applied on a regular basis.
 I find that the standard of inspection put forward by the plaintiff is one of perfection rather than reasonableness. But even if that standard is applicable, the plaintiff’s expert, Mr. Anderson’s opinion was that the detailed inspection be done only at least once a year. The logical time to perform an annual inspection would have been in the spring—before the period of most intensive use and immediately after the season of greatest exposure to rain. There is no evidence from which it can be inferred that the defect that caused the plaintiff’s fall in December 2015 would have been present or detectable on an inspection six to eight months earlier.
Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a neck and back fracture caused by a vehicle collision.
In today’s case (Sommerville v. Munro) the Plaintiff was involved in a near head-on collision in 2015. The Defendant admitted fault. The crash caused a fracture to the Plaintiff’s neck at the C2 level and in his low back at the L4 vertebrae. The Plaintiff was left with chronic and limiting back pain following the crash.
ICBC argued he would have been saddled with similar problems even if the crash never happened. The Court found this position unpersuasive. In assessing non-pecuniary damages at $125,000 Mr. Justice Smith provided the following reasons:
 There is no question that the plaintiff suffered major trauma in the accident. The defendants do not dispute his evidence of symptoms and limitations, but say that he is overweight, in his sixties, and was previously engaged in back-breaking labour despite pre-existing back problems. They say there is at least a measurable risk that he would have suffered similar back pain even if the accident had never happened.
 The defendants rely on the opinion of Dr. Julio Padilla, a neurosurgeon, whose report says the accident disabled the plaintiff for at least six months, but the spinal fractures are stable and the ongoing pain is the result of the progressing, pre-existing degenerative condition.
 On cross-examination, Dr. Padilla agreed that, as a matter of logic, the accident likely contributed to the plaintiff’s current pain, but the degree of that contribution is impossible to quantify. He also agreed that it is impossible to predict when degenerative changes shown on an x-ray or CT scan will become symptomatic and it is reasonable to assume trauma will cause symptoms to appear sooner than they otherwise would.
 In closing argument, counsel for the defendants conceded that the accident “triggered” the onset of pain.
 Dr. Helper agrees there are multiple causes for the plaintiff’s current pain, but injuries caused by the accident are “a significant contributing factor” to the plaintiff’s back and leg pain. Although there was a previous history of some low back pain, he says the plaintiff would be unlikely to have his current symptoms but for the accident.
 Dr. Helper relies in part on the fact that the facet block injections provided some relief. That shows the lumbar facet joints are a significant source of the plaintiff’s pain, which is consistent with the spinal fracture he sustained in the accident. He said the degenerative or arthritic changes in the low back would not necessarily have caused pain to the facet joints in the absence of the accident.
 While Dr. Helper said that a degenerative spine can become painful with trauma, he agreed on cross-examination that such trauma could also come from activities like lifting or twisting.
 Based on the medical evidence, it is likely that the plaintiff’s current pain comes partly from areas of the spine injured in the accident and partly from areas that were already compromised. However, I also accept the plaintiff’s evidence that, in the years between his retirement and the accident, any back pain he had was not significant. It clearly did not limit his activities.
 The fact that severe back pain began so soon after the accident supports the inference, which the defendants concede, that the accident caused the pre-existing condition to become symptomatic. While the plaintiff was clearly at risk for increased back pain, there is no evidence that it was likely to develop either as quickly or to the same degree…
 I have considered the cases put forward by both parties and the general considerations referred to in Stapley and find an appropriate award of non-pecuniary damages in this case to be $150,000, less a 10% reduction for the pre-existing condition. The net award for non-pecuniary loss is therefore $135,000.
Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff request to strike a jury notice in an ICBC injury claim.
In the recent case (Froese v. Wilson) the 17 year old Plaintiff who “became severely intoxicated at a house party” left riding in the cargo box of a pickup truck which then moved and “caused him to fall out of the truck.”.
The Plaintiff sued for damages and the matter was set down for a 20 day trial with the Defendant electing trial by jury. The Plaintiff objected noting that a total of 19 expert witnesses would likely testify, the matter was too complex for a jury and the jury “may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability“. The court noted that while this may be true it is no reason to strip a party’s right to trial by jury. In reaching this conclusion Mr. Justice Smith provided the following reasons:
 This trial is set for 20 days—a length no longer unusual for a jury trial. Although there is a multiplicity of expert evidence, it comes from experts in fields that are commonly at issue in personal injury cases and there appears to be a great deal of common ground as to the nature of the injuries suffered by the plaintiff in the motor vehicle accident. As said above, the main areas of disagreement relate to the long-term impact of those injuries and the cause of the plaintiff’s ongoing symptoms. I am not persuaded that those areas of disagreement are so complex that they cannot be considered by a properly instructed jury on the basis of properly presented and explained expert evidence.
 Counsel for the plaintiff also alluded to a concern that a jury may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability. That is entirely speculative and I presume jurors will be attentive to whatever instructions the trial judge gives them on how they are to go about assessing the relative blameworthiness of both parties. However, the possibility that a jury verdict may reflect community attitudes that differ from those of judges is one of the frequent justifications for retaining the jury system.
 Counsel also argues that the outcome of this trial may determine the course of the rest of the plaintiff’s life and subjecting him to the uncertainties inherent in a jury trial is inconsistent with the object of a just determination on the merits set out in R. 1-3.
 Although I have a certain sympathy with the plaintiff’s concern about the risks and uncertainties in a jury trial, the fact remains that R. 12-6 continues to give either party the right to unilaterally select trial by jury. Unless the party who does not want a jury trial can meet the onus of showing that it is not appropriate in a particular case and the presumptive right to a jury trial should be denied, a jury trial and verdict must be considered to come within the “just determination” envisioned by R. 1-3.
 The plaintiff has failed to meet the onus in this case and the application to strike the jury notice must be dismissed.
Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing non-pecuniary damages of $90,000 for a long standing neck injury with associated headaches.
In today’s case (Willett v. Rose) the Plaintiff was involved in a 2010 collision. At trial, some 7 years later, the Plaintiff continued to suffer from neck pain with associated headaches. In assessing non-pecuniary damages at $90,000 Mr. Justice Smith provided the following reasons:
 In summary, the evidence is undisputed that the plaintiff’s headaches, including migraine headaches, are more frequent since the accident. The events with which those headaches were associated before the accident–monthly menstrual periods–no longer occur. I also accept the plaintiff’s evidence that her headaches are more severe and usually associated with neck pain. All of the medical evidence acknowledges the mechanism by which neck pain can evolve into headaches, including migraines and confirms the existence of objective signs of neck injury.
 All of that evidence leads to the conclusion that, on the balance of probabilities, there is a causal link between the plaintiff’s neck pain and stiffness and her migraines. I find the neck pain and stiffness to have been solely caused by the accident.
 As for the migraines, the governing principle is that stated by the Supreme Court of Canada in Athey v. Leonati,  3 S.C.R. 458: causation is established if an injury was caused or contributed to by the accident. Given the plaintiff’s long history of migraines, it may well be that some other factor is also playing a role in their onset, but I find that the injuries the plaintiff suffered in the accident are at least a major contributing cause of the migraines she now has. Or, to use the language of the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, “but for” accident, the plaintiff’s migraines would not be as frequent or severe as they now are.
 It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future…
 Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.
Reasons for judgement were released today demonstrating that filing a late trial brief is no remedy once a trial date is lost due to lack of compliance with the Rules of Court.
In today’s case (Carleton v. North Island Brewing Corporation) the parties were scheduled for trial and apparently by consent agreed to file trial briefs “outside the times prescribed by the Rules.“.
The Court did not grant the request for lack of sufficient evidence supporting it and struck the trial date. The parties hoped late briefs would salvage the trial date but the Court declined. In doing so Mr. Justice Smith provided the following reasons:
 Rule 12-2(1) requires a trial management conference to be held at least 28 days before trial. The plaintiff must file a trial brief at least 28 days before the date of the trial management conference (R. 12-2(2)) and other parties must file their trial briefs at least 21 days before the trial management conference (R. 12-2(3.1)). If no trial briefs are filed as required, the matter is removed from the trial list (Rule 12-2 (3.3).
 These Rules are intended in part to assist the court in determining what cases are ready for trial, which in turn assists the court in the allocation of scarce judicial resources. They are not Rules that counsel and parties may opt out of at their convenience. At the very least, any application to extend the time for filing of a trial brief must be accompanied by a reasonable explanation as to why it was not filed in time as well as a proposed new date by which it will be filed.
 In this case, neither party filed a trial brief and counsel simply submitted a draft consent order that “trial briefs of the plaintiff and defendant be filed outside the times prescribed” by the Rules. There was no explanation of why no one had filed a trial brief and no suggestion of when briefs would be filed. The absence of that material was in itself sufficient grounds to deny the application, but a subsequent review of the court record indicated that the matter had already been struck from the trial list.
 The trial management conference had been set for February 16, 2017 and the requisition seeking a consent order for late filing was not submitted until January 30. In other words, the parties were seeking to file trial briefs after the date on which the Rules required the case to be struck from the trial list.
 Rule 12-2 (3.3) reads
(3.3) Unless the court otherwise orders, a trial must be removed from the trial list if no trial brief has been filed under subrule (3) or (3.1).
 Therefore, where a matter is struck from the trial list pursuant to that Rule, it cannot be restored simply by late filing of trial briefs, even if the court permits late filing. At least one party must make a proper application to restore the trial to the list. The question of late filing of trial briefs will only become relevant if that application is successful. Whether such an application is successful will depend on the circumstances, but I expect that in most cases applicants will be required to show both a reasonable excuse for the failure to file trial briefs and some serious prejudice if the trial does not go ahead.
Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, with critical comments about “uninformative” trial briefs.
In today’s case (Kirk v. Nanaimo Literacy Association) the parties wishes to dispense with an otherwise mandatory trial management conference and asked the court to waive the hearing. In refusing to do so the Court was critical of the trial briefs filed and provided the following comments:
 Both parties state in their trial briefs that they expect the trial to be completed within the scheduled time. Yet I don’t know on what basis that assertion could be made because the total time estimates for witnesses and submissions in the two trial briefs exceeds the time set for trial by almost two days. Again, perhaps the trial was rescheduled for more days, but I have not been given any trial briefs reflecting that.
 Further, the trial briefs do not indicate that counsel have fully considered all matters that might usefully be explored at a TMC. For example, the plaintiff’s trial brief, after listing the witnesses to be called, states:
The filing party may call further witnesses to address any outstanding documentary hearsay concerns which the parties are unable to resolve prior to trial.
 If there are unresolved issues about admissibility of documents, particularly if it is going to affect the number of witnesses to be called, that is an issue to be explored at the TMC and the parties are not ready for trial within the meaning of R. 12-2(3.6).
 Under the category of “Admissions”, the plaintiff’s brief says the plaintiff will admit that:
A document which conforms to the requirements set out in the Evidence Act, RSBC 1996, C. 124, s.42 is admissible as prima facie proof of any fact otherwise provable through direct oral evidence.
 Thus, the purported “admission” by the plaintiff amounts to no more than a statement that the law of British Columbia applies to this case. That does not assist the Court in determining what facts will or will not be at issue in trial. I assume there are documents that qualify as business records under the Act, that certain facts stated in them are relevant to the issues in this case and the plaintiff is admitting or not disputing those facts. If that is the case, a party who wishes to be excused from attending a TMC must set out what those admitted facts are.
 The defendant’s trial brief is equally uninformative on this issue. It simply says that the facts the defendant will admit will be “determined prior to trial date”.
 Clearly, as of the date they wrote their trial briefs, counsel had not clearly turned their minds to or discussed the question of what facts could be admitted. Counsel who do not make that effort cannot expect to be excused from attending a TMC.
 Under the heading of “Authorities”, both parties simply state they do not expect a joint brief of authorities at trial. That is not sufficient. The trial brief asks counsel to refer to authorities in order to identify the legal issues that will be argued at trial and in order to satisfy the Court that the parties and counsel have considered the law as it may affect their position at trial. That does not mean counsel need to cite every case they may wish to refer to at trial, but by the time they start preparing trial briefs, counsel should have identified the most important ones.
 This is a wrongful dismissal case, so counsel should by now be familiar with the leading cases in that area as well as any others that are particularly relevant, such as by virtue of comparable facts. Those should have been referred to in the trial brief.
 In short, the trial briefs submitted are largely pro-forma documents that do not give the Court confidence that all issues have been addressed or that all potentially useful discussions between counsel have taken place. The application to dispense with the TMC is therefore dismissed.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Defendant to pay a Plaintiff $5,000 in non-pecuniary damages and a further $2,500 in punitive damages following an assault during a debt collection.
In today’s case (Ross v. Dhillon) the Plaintiff attended the Defendant’s business to collect an outstanding business account with respect to some industrial equipment purchased by the Defendant. The Defendant made partial payment and the Plaintiff, unsatisfied with this, removed a part from the equipment. As he attempted to leave the Defendant “body‑checked him into the door frame and held him against it for several seconds.”.
The Court found this incident caused a minor aggravation of pre-existing injuries the Plaintiff suffered in a collision. In assessing damages at $7,500 Mr. Justice Smith provided the following reasons:
 I therefore find that the plaintiff experienced a minor and short‑lived aggravation of his neck and back symptoms, accompanied by an equally minor and short‑lived condition that produced some numbness in his hand…
 Considering the minor nature of the plaintiff’s injuries, including the brief aggravation of his previous symptoms and including a component for aggravated damages, I award the plaintiff non‑pecuniary damages of $5,000.
 I also find this to be an appropriate case for punitive damages. The defendant’s conduct was willful, reckless and dangerous. While his conduct was at the low end of any scale that would measure violent conduct, no amount of violence was an acceptable response to this dispute about a relatively small debt.
 In Van Hartevelt v. Grewal, 2012 BCSC 658, the court awarded $10,000 in punitive damages to a plaintiff who was beaten about the head and kicked in the ribs. The violence in this case was much less severe, and I award punitive damages of $2,500.
Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, finding a motorist was not negligent for having a faulty emergency brake which led to a pedestrian collision.
In the recent case (Little v. Einarsen) the Plaintiff pedestrian was struck by an unoccupied vehicle which “rolled downhill from where it had been parked“.
He sued the vehicle owner alleging negligence. The Court dismissed the lawsuit finding that the vehicle likely rolled because its emergency brake failed and the owner did not know, nor ought to have known, that the defect existed. In dismissing the claim Mr. Justice Smith provided the following reasons:
 The uncontradicted evidence is that Ms. Einarsen’s car rolled downhill from where it was parked while its emergency brake was engaged. The fact that the emergency brake failed to perform its principle function leads to the obvious inference that it was in some way defective. The inference is further supported by admissible business records from the repair shop that indicate the emergency brake was repaired or adjusted within days or, at most, a few weeks after the accident.
 In the absence of any direct or circumstantial evidence pointing to any other cause, it must be concluded that the accident would not likely have occurred if the emergency brake had been functioning properly. Putting it in slightly different terms, the accident, on the balance of probabilities, would not have occurred but for the failure of the emergency brake to perform its intended function.
 Whether Ms. Einarsen can be held at fault for that failure depends on whether it was foreseeable—whether she knew or ought to have known about a defect or inadequacy that might cause the emergency brake to fail.
 An owner of a vehicle owes a duty not to use it or permit it to be used if he or she knows or ought to have known that it is defective in any way that might cause an accident. The court will find that an owner ought to have known about a defect that would have been detected by the exercise of ordinary care, caution, and skill: Dyk v. Protec Automotive Repairs Ltd., 1998 CarswellBC 3834 (S.C.) at para. 81.
 In Newell v. Towns, 2008 NSSC 174, the court said at para. 175:
 ….However, an owner is not liable for all consequences that may flow from an accident that happens as a result of a mechanical defect in a vehicle. Liability only occurs for those defects that went uncorrected, when either the owner knew, or should have known by the exercise of reasonable care, of their existence.
 There is no evidence that the emergency brake had failed in the past or of any defect of which Ms. Einarsen knew or should have known. Arguably, the age of the car heightened Ms. Einarsen’s duty to be satisfied that all components were in good working order. I find that, by having the vehicle inspected only two months before the accident, she had done what was reasonable to comply with that duty.
 There is no evidence that the mechanics who performed that inspection failed to notice or repair a problem with the emergency brake or that Ms. Einarsen had any reason to believe they had. There is no evidence of any problem with the emergency brake that became apparent between the dates of the inspection and the accident.
 In short, while Mr. Little clearly suffered injuries, he has failed to meet the burden of proving that they were caused by anything Ms. Einarsen did or failed to do or by any mechanical defect she could have detected with ordinary care, caution, or skill. In view of that failure to prove liability and a resulting entitlement to damages, it is not necessary to comment upon or attempt to resolve the many issues about the nature and extent of Mr. Little’s injuries.
 The action must be dismissed with costs.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, criticizing and restricting the practice of allowing late defense medical examinations in the guise of obtaining ‘responsive’ reports.
In last week’s case (Timar v. Barson) the Plaintiff was injured in a 2011 collision and sued for damages. The alleged injuries included a concussion. In the course of the lawsuit the Plaintiff served a psychologists report which found the plaintiff suffered from a variety of cognitive issues. As the 84 day deadline approached the Plaintiff served the balance of his reports which included a psychiatric opinion that the Plaintiff suffered from an ongoing concussive injury from the collision. The Defendant applied for an independent medical examination beyond the 84 day deadline arguing they needed a responsive opinion in the face of these new reports. Mr. Justice Smith disagreed and in doing so provided the following reasons criticizing the ‘wait and see’ approach in defendant’s exercising their rights for independent medical exams:
 Rule 11-6(4) establishes a notice requirement for responsive evidence, but it does not exempt any party from the basic notice requirement in R. 11-6(3). In other words, it is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.
 A party seeking an IME after expiry of the deadline in R. 11-6(3) must, as stated in Luedecke, satisfy the court that the examination is necessary to properly respond to an expert report served by the other party and not simply to respond to the subject matter of the plaintiff’s case.
 However, other factors beyond the meeting of that evidentiary threshold must be considered. The principle one that emerges from virtually all the cases is the extent to which the party seeking the examination can claim to be truly surprised by the expert evidence served by the other party: Jackson at para. 27; Compton v. Vale (4 June 2014), Kelowna M95787 at para. 11 (B.C.S.C.). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s evidence is received, then attempt to introduce all of their expert evidence as response, do so at their peril: Crane v. Lee, 2011 BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011), Victoria 09-4160 at para. 11 (B.C.S.C.)…
 A defendant in a personal injury action must therefore know that the plaintiff will have to rely on medical evidence if the matter proceeds to trial. Knowing that, the defendant must consider whether an IME is required in order to obtain a report that can be served at least 84 days before trial pursuant to R. 11-6(3). In order to determine that and to identify the type of medical expert to involve, the defendant must determine what the plaintiff is saying about his or her condition. An examination for discovery is the obvious, most effective and most important way to do that.
 The defendant in this case chose not to exercise its rights under the Rules. It did not conduct an examination for discovery and made no effort to obtain a timely IME. In the absence of such efforts, I must hold that the Master erred in permitting the defendant to use R. 11-6(4) as a means of obtaining its first medical evidence. In the limited time she had to deal with the application, the Master failed to fully and properly consider the limited purpose of R. 11-6(4) and its interaction with other rules as they affect actions of this kind.