Tag: Mr. Justice Smith

Defendant 75% at Fault for Crash Despite Being Rear Ended

Although not common, motorists can be found partly or even wholly at fault after being involved in a rear-end collision.  Such a result was demonstrated in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Stanikzai v. Bola) the Plaintiff rear-ended the Defendant’s vehicle.  The Court was presented with competing versions of how the collision occurred but ultimately accepted the evidence of an independent witness who confirmed the Defendant “quickly” moved into the Plaintiff’s lane as we was attempting a U-turn in front the the Plaintiff’s vehicle.  In finding the Defendant 75% at fault for the resulting impact Mr. Justice Smith provided the following reasons:

] The only independent witness called was Mr. Tiwana, a truck driver who was behind the plaintiff in the left lane. Like the plaintiff, he described the defendant’s van moving into the right lane, then quickly attempting a u-turn in front of the plaintiff’s vehicle, leaving the plaintiff no time to react. However, one significant difference between the plaintiff’s evidence and that of Mr. Tiwana is that Mr. Tiwana said he saw the left turn signal on the defendant’s vehicle before what he described as the attempted u-turn.

[7] There is no doubt that when one vehicle hits another from behind, the onus is on the driver of the rear vehicle to show that the collision was not caused by his or her fault: Barrie v Marshall, 2010 BCSC 981. A driver following other vehicles is expected to keep his vehicle under sufficient control to be able to deal with sudden stopping or slowing of the vehicle in front: Pryndik v. Manju, 2001 BCSC 502.

[8] But while liability for a rear end collision usually rests entirely with the following driver, that is not an invariable result. For example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to be equally at fault for a rear end collision. In that case, the front driver stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the court found that the rear driver was travelling either too fast or too close behind to stop when confronted with the hazard.

[9] The plaintiff and the defendant in this case give conflicting evidence that cannot be reconciled. In attempting to determine what happened, on the balance of probabilities, I prefer the evidence of the only independent witness, Mr. Tiwana. He describes the defendant moving suddenly into the plaintiff’s lane in circumstances where the plaintiff did not have time to stop. That is not consistent with the defendant’s evidence of the lapse of time between her lane change and the collision and I do not accept her evidence on that point. I do accept her evidence that she had no reason to be making a u-turn and was not attempting one, but I find that her turn to the left on impact likely created the mistaken impression of a u-turn.

[10] Based on Mr. Tiwana’s description of the accident, I find that the defendant, in changing lanes, failed to notice or properly assess the position of other vehicles and failed to ensure that she had sufficient room to change lanes safely. Section 151(a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 reads:

151 A driver who is driving a vehicle on a laned roadway

(a) must not drive from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle,

[11] I therefore find that the accident was caused or contributed to by the negligence of the defendant. However, on the basis of Mr. Tiwana’s evidence, the plaintiff must also bear some responsibility because he failed to see the defendant’s turn signal. Although the defendant’s move was a sudden one, seeing her turn signal would likely have given the plaintiff an earlier opportunity to either apply his brakes or to at least use his horn to warn the defendant of his presence.

[12] Because it was the defendant who created the dangerous situation, I find that she must bear the greater share of blame and apportion liability 75 per cent to the defendant and 25 per cent to the plaintiff.

Expert Report Excluded for Tardiness and Credibility Comments

A short but useful analysis was set out in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of a tardy expert report.
In the recent case (Stanikzai v. Bola) the Plaintiff was injured in a 2007 collision.  In the course of the claim the Defendant served a medical report but did so out of the time required by Rule 11-6(3).  Mr. Justice Smith declined to exercise his discretion to admit the report under Rule 11-7(6) finding that the report “would not be of assistance in any event” noting the expert’s opinion improperly delves into credibility.  Mr. Justice Smith provided the following reasons:

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion. At trial, the defendant sought to enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not been served within the 84 day notice period required by Rule 11-6(3). I declined to exercise my discretion to shorten the required notice period and admit the report, largely because I found it would not be of assistance in any event.

[29] The essence of Dr. Ponsford’s opinion was that he was unable to provide a firm medical opinion because of what he regarded as inconsistencies and contradictions within the plaintiff’s history. Credibility is, of course, a matter for the court, not the expert witness.

$100,000 Non-Pecuniary Assessment For S1 and Sciatic Nerve Irritation

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain caused by low back nerve root irritation.
In this week’s case (Stanikzai v. Bola) the Plaintiff was involved in a 2007 motor vehicle collision.  The Plaintiff sustained various soft tissue injuries and in addition the crash caused persistent low back pain involving the Plaintiff’s S1 and sciatic nerves.  The Plaintiff’s symptoms were expected to continue with the prognosis being “quite guarded“.

Mr. Justice Smith assessed non-pecuniary damages at $100,000 although reduced this amount by 15% to account for a “measurable risk” that the Plaintiff would have experienced similar symptoms even without the collision due to pre-existing factors.  In arriving at this assessment Mr. Justice Smith provided the following reasons:
[24] Dr. Yu also believes the accident caused a low back injury that resulted in left sided sciatic pain with “obvious clinical signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff had pre-existing degenerative disc disease, but that is a very common condition and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on cross-examination that the plaintiff’s disc degeneration is severe for a person his age. Dr. Yu and Dr. Caillier also agreed that the disc degeneration put the plaintiff at increased risk for back pain and sciatica and that disc herniation and resulting pain can occur without any significant trauma…

[26] Dr. Caillier said that given the chronic nature of the plaintiff’s symptoms, he is likely to have ongoing low back and radiating leg pain as well as sensory disturbance and weakness in the left leg. Although she says some improvement may be possible with medication and a physical reconditioning program, his prognosis “remains quite guarded.” She said his ability to work will be effected by his low back symptoms and resulting limitations in “sitting, standing, lifting, carrying, bending, twisting, crouching, as well as any other impact activities.” She concludes:

It is my opinion that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August 25, 2007 have had a significant negative impact upon his future employability as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am also in agreement that there will be some longterm disability associated with his symptoms, whether he chooses to go forward with surgical or nonsurgical options.

[27] Dr. Yu said the plaintiff’s symptoms will likely “persist for the foreseeable future.” Although surgery could be performed to remove the bulging disc, Dr. Yu said even that is unlikely to provide complete relief.

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion…

[31] The Defendants agree that the plaintiff suffered some injury, but say his spine was already in a severely degenerated condition and the accident only aggravated or accelerated that pre-existing condition. They also say there was a significant risk that condition would have detrimentally affected the plaintiff in the future even without the accident. Those are issues to be considered on assessment of damages. Based on the only medical evidence that is before me, I find that the plaintiff has a low back injury, with associated nerve root involvement, that was caused or contributed to by the accident.

[32] I also find that the plaintiff has experienced and will continue to experience low back pain. Based on his evidence and that of other witnesses, I find that he remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities, and that the pain significantly interferes with his quality of life…

[42] Apart from what I have found to be a real possibility of future back problems in any event, I find Majer and Crane to be the most comparable. Both cases involved ongoing and likely permanent back pain that, while not completely disabling, severely limited the plaintiff’s work and recreational activities. Both involved pre-existing conditions that were asymptomatic at the time of the accident, although the plaintiff in Crane had, like this plaintiff, a previous history of back pain. The court awarded non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.

[43] If I had not found the plaintiff to have been at significant risk for back problems, I would have assessed non-pecuniary damages of $100,000. In recognition of that risk, I apply 15 per cent reduction and assess non-pecuniary damages at $85,000.

The "Investigative Stage" Bar to Privilege: Plaintiffs vs. Insurers


As recently discussed, claims for litigation privilege can fail when a defendant’s insurer collects statements and information shortly after a collision in what is deemed to be the ‘investigative stage‘.  The simple reason being that such documents typically are not created for the dominant purpose of litigation.
This analysis, however, does not necessarily translate easily to statements obtained by Plaintiffs following a crash because Plaintiffs do not share the same investigatvie responsibilites that insurers do.   This reality was highlighted in reasons for judgement published earlier this year by the BC Supreme Court, Vancouver Registry.
In the recent case (Cliff v. Dahl) the Plaintiff was injured in a 2007 collision.  She hired a lawyer to assist her with her claim.   The lawyer hired an investigator who obtained statements from multiple witnesses to the collision.
ICBC brought an unsuccessful application to force the Plaintiff’s lawyer to produce these documents.  The Plaintiff refused stating these statements were privileged.  ICBC appealed arguing these documents were obtained during the ‘investigative stage‘ and should be produced.  In dismissing the appeal Mr. Justice Smith provided the following reasons highlighting the ‘investigative stage’ and the different duties of Plaintiffs versus insurers:

[22] The Master had before him an affidavit of plaintiff’s counsel which, sketchy as it is, did say that the information was gathered and the statements were gathered for the purpose of preparing for the plaintiff’s case in this action, as opposed to investigating the plaintiff’s case, and the Master apparently inferred from that that litigation was the dominant purpose. Sketchy as that evidence was, I cannot say that the Master was clearly wrong in drawing that conclusion.

[23] Defence counsel refers to a statement of the Master in which he says in effect that it is very hard to see how statements gathered by plaintiff’s counsel once retained would not meet the dominant purpose test. That is probably too broad a statement and certainly if the Master said that it was a general rule of law, that would be a question of law to be reviewable but in my view that is not the basis of the Master’s decision. He made a finding on the evidence before him.

[24] In that regard, I note that while the evidence from plaintiff’s counsel is sketchy, plaintiff’s counsel in this situation is in a somewhat different position from the insurance adjusters whose determination of dominant purpose is often at issue in other cases such as Hamalainen, supra.

[25] The point at which a plaintiff’s counsel moves from the stage of investigating and considering the possibilities of litigation to a firm decision to proceed and the subsequent efforts that have a dominant purpose of litigation depends of course on the information in counsel’s possession. Much of that information must necessarily come directly from the plaintiff and the plaintiff’s counsel must balance the need to show the dominant purpose of the document or the witness statement with the restrictions placed upon him or her by solicitor/client privilege.

[26] I infer from the material before me that the Master reviewed the evidence and found it sufficient to establish a dominant purpose. Whatever decision I might have made had the matter come before me, I cannot say that the Master was clearly wrong.

[27] Those are my reasons for judgment and so the appeal is dismissed.

Of note, this result was revisited after the witness subsequently became a party to the litigation.

$250,000 Non-Pecuniary Assessment for "Open Book" Pelvic Fracture

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in 4 motor vehicle collisions.
In last week’s case (Scoates v. Dermott) the Plaintiff was involved in multiple collisions.  He was found faultless for all of them.  The collisions resulted in numerous injuries the most serious of which was an open book‘ pelvic fracture.  The consequences of his injuries disabled him from his own occupation as an ambulance attendant and largely disabled him from any other occupation.  In assessing non-pecuniary damages at $250,000 Mr. Justice Smith provided the following reasons:

[171] In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal set out a non-exhaustive list of factors to be considered including: the age of the plaintiff; the nature of the injury; the severity and duration of pain; the degree of disability; the impairment of family, marital, and social relationships; and loss of lifestyle.

[172] Reference to any and all of those factors in this case reveals a profound impact. The initial injuries and their immediate aftermath were horrific.  Although the plaintiff’s recovery was remarkable in some respects, his ongoing pain and disability, combined with the psychological difficulty and frustration of adjusting to that pain and disability, are likely to have severe adverse effects for the rest of his life.  Those effects will be felt in all his daily activities and in his family and social life.

[173] An additional factor in this case is the extent to which the plaintiff is affected by the loss of his pre-injury career.  The loss of income is, of course, separately compensated, but the plaintiff so enjoyed his job, and defined himself so much in reference to that job, that his inability to return to work as a paramedic magnifies his loss of enjoyment of life.

[174] I have considered the cases of Grewal v. Brar, 2004 BCSC 1157, Izony v. Weidlich, 2006 BCSC 1315, Lines v. Gordon, 2006 BCSC 1929,  Dikey v. Samieian, 2008 BCSC 604, andZawadzki v. Calimoso, 2010 BCSC 1952. Considering the awards made in those cases, comparing the injuries in those cases to those in this case, and most important, considering the individual circumstances of the this plaintiff and the impact of his injuries on his life, I find  an appropriate award of non-pecuniary damages to be $250,000.

[175] In awarding non pecuniary damages of $250,000, I have not overlooked the submission of defence counsel that cases awarding non-pecuniary damages below the upper limit but in excess of $200,000 frequently involve a finding of ongoing effects from organic brain injury.  Although I have found the plaintiff’s cognitive, emotional and personality difficulties may result from the complex interaction of chronic pain and depression, rather than organic brain injury, the intractable nature of those problems makes the distinction largely irrelevant.

Unfairness of Indivisible Injury Assessment Remedied Through Apportionment, Contribution and Indemnity

The law in BC has developed to permit a Plaintiff who sustained ‘indivisible injuries‘ caused by multiple defendants to seek full compensation from any of the at fault parties.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this reality and finding that any unfairness arising from such a result can be remedied through apportionment, contribution and indemnity as between the Defendants.
In last week’s case (Scoates v. Dermott) the Plaintiff suffered injuries in 4 separate collisions.  The first was the most serious causing multiple orthopaedic injuries.  The subsequent collisions were more minor in nature causing an aggravation of injuries.   After canvassing the law of indivisible injury compensation at length Mr. Justice Smith provided the following reasons and interestingly went on to note that an indivisible injury can be divisible with respect to specific heads of damage:

[161] Counsel also argues that it would be unfair to the Defendant Carse to hold him jointly and severally liable for all of the injuries the Plaintiff has suffered.  In Bradley, the Court of Appeal recognized that such an unfairness may result from a finding of indivisible injury, but can be remedied through the rights defendants have against each other (at para. 36):

It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[162] I therefore conclude that the second accident contributed to an indivisible injury and the defendant Carse is jointly and severally liable to the plaintiff.  I will deal with the question of apportionment later in these reasons.

[163] The third and fourth accidents each caused a temporary aggravation in the plaintiff’s generalized pain. It is not possible to identify a precise date when the aggravation from each of the third and fourth accidents ended and the plaintiff’s pain returned precisely to a previous baseline.  The subjective nature of pain and the physical and psychological factors that contribute to it are simply too complex for such an assessment.  In my view, that is precisely the scenario the Court of Appeal was addressing when it said in Bradley (at para. 34):

If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either. It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.

[164] Bradley discusses the concept of indivisibility in a physical sense – injuries to the same part of the body that cannot be divided into distinct parts.  But there appears to be no reason in principle that a physically indivisible injury may not be divisible for the purpose of specific heads of damage.  The basic rule remains that defendants cannot be held liable for losses they played no part in causing.

[165] The third and fourth accidents temporarily increased the plaintiff’s pain and suffering and must be seen as contributing to an indivisible injury for purposes of assessing non-pecuniary damages.  But those accidents played no part in the plaintiff’s loss of income, inability to return to his former occupation or his loss of earning capacity.

[166] By the time of the third accident, the plaintiff had not worked for approximately 18 months and it was clear that he would never be able to return to work as a paramedic.  A vocational consultant, Mr. Carlin, said in November 2009, that the plaintiff was not competitively employable for full time work and that his return to the work force in any capacity was “problematic”.  Although Mr. Carlin’s report was not written until November 2009, it was based on an interview and tests conducted June 18, 2009 – 10 days before the third accident.

[167] Similarly, Dr. Stewart said in September 2009 that it was unlikely the plaintiff would return to the workforce to any significant degree.  That was also based on an examination that predated the third accident.  The report was written after the third accident, but makes no reference to it.

[168] Accordingly, I find that the plaintiff’s income loss and loss of earning capacity are divisible in regard to the second and third accident.  Similarly, there is no evidence that the last two accidents have played any causative role in the plaintiff’s need for future therapies and other items that will be considered under the cost of future care.

[169] I therefore find that the defendants Nicole Braddick, Beverley Braddick and Melanie Jones contributed only to the plaintiff’s non-pecuniary damages and their joint and several liability to him is limited to those damages.  Similarly, the plaintiff’s past income loss must be divided between the periods before and after the second accident.  The defendant Carse is jointly and severally liable only for the losses incurred in the latter period

More on Commercial Host Liability and Excessive Alcohol Service


As previously discusseda commercial host can be liable for damages if they serve patrons to the point of intoxication and those patrons then are injured or cause injury to others.  Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing this topic.
In yesterday’s case (Van Hove v. Boiselle) the Plaintiff was injured in a “fatal motor vehicle accident”.  The defendant was allegedly drunk at the time.  Prior to the collision the Defendant was drinking at the Artful Dodger Pub “to the point that the Defendant became heavily intoxicated“.
The Plaintiff sued the driver for damages.  ICBC, in the defence of the claim, brought Third Party proceedings agaisnt the Pub arguing they were partly at fault for the collision due to over-service.  The Pub brought a summary trial arguing the claims against them should be dismissed.  Mr. Justice Smith refused to dismiss the claim finding the case could not be disposed of by summary trial and dismissed the Pub’s application.  In doing so the Court provided the following reasons:

[16] The duty of care that commercial hosts who serve alcohol owe to the general public arises out of the profit making nature of the enterprise and the well-known dangers associated with the product. It is generally foreseeable that intoxicated patrons may, as a direct result of their intoxication, cause injury to others.

[17] The question then becomes one of the standard of care – whether, in the circumstances of a particular case, the commercial host did what was necessary to fulfill the duty. That inquiry includes the question of the whether the actual circumstances and means of injury were foreseeable.

[18] A plaintiff who proves breach of both the duty and the standard of care must then prove causation – whether the breaches actually caused the injury, which would not have occurred “but for” the negligent conduct of the defendant.

[19] L.J.D. in effect submits that Ms. Boiselle’s safe arrival home proves that the standard of care was complied with and/or proves that the chain of causation was broken. In my view, that ignores the highly fact-specific nature of both inquiries. The proposition that L.J.D. puts forward may well be one the properly applies in many, if not most, cases of this kind, but it cannot be treated as a principle of law that applies regardless of any additional facts that may arise in an individual case.

[20] One such fact in this case, on which I do not have sufficient evidence, is the level of Mr. Goll’s intoxication. If L.J.D.’s employees knew or ought to have known that he was as intoxicated as Ms. Boiselle, or nearly so, it may be open to a trial judge to find, on all of the evidence, that allowing her to leave the pub in his company did not meet the standard of care. It may also be open to a trial judge to find that her arrival home with an equally intoxicated person did not amount to a “safe” arrival within the meaning of the authorities and did not break the chain of causation.

[21] I therefore find myself unable to find the facts necessary to decide this matter on summary trial and the third party’s application must be dismissed.

Access to Justice and Security for Costs


As discussed many times, the BC Supreme Court operates on a “loser pays” system generally requiring a losing litigant to pay the winner’s costs and disbursements.  These costs awards can quickly add up to tens of thousands of dollars and can easily exceed a litigant’s ability to pay.
Although the BC Supreme Court has the ability to require a Plaintiff to pay security for costs ahead of trial, for the obvious reason of ensuring access to justice this discretion is rarely exercised.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Hughes v. Hughes) the Plaintiff sued her parents for various harm she claims she suffered due to their actions many years ago.  The Defendant brought a motion to dismiss the lawsuit arguing that it was an abuse of process.  The Court dismissed this motion finding that while the allegations may have been somewhat unique they “essentially amount to battery, breach of trust and fraud, all of which are well-recognized causes of action“.
The Defendant further argued that the case was bound to fail due to limitation issues and requested Security for Costs.  The Court agreed that while the case may be limitation barred that was an issue for trial.  In dismissing the application for costs security Mr. Justice Smith provided the following reasons:

[18] The defendants seek, in the alternative, an order that the plaintiff post security for costs. They say she has no history of steady employment and would not likely be able to pay costs if the action is dismissed. The plaintiff says in an affidavit that she is employed as a pre-school teacher, but gives no particulars of that employment.

[19] The law governing security for costs was summarized by Goepel J. in Bronson v. Hewitt, 2007 BCSC 1751. Although the court has inherent jurisdiction to order an individual resident in the jurisdiction to post security for costs, that jurisdiction should be exercised cautiously, sparingly and only under very special or egregious circumstances.

[41] …For good reason, individual and corporate plaintiffs have always been treated differently. Absent special circumstances, corporate shareholders are entitled to avail themselves of the protection of a limited liability company to avoid personal exposure for costs: P.G. Restaurant Ltd.  v. Northern Interior Regional Health Board et al., 2006 BCSC 1680. An order for security for costs prevents the principals of a corporate plaintiff from hiding behind the corporate veil and, as noted by McGarry V.C. in Pearson, protects “the community against litigious abuses by artificial persons manipulated by natural persons.”

[42]  With individuals, the fundamental concern has always been access to the courts. Access to justice is as important today as it was in 1885 when Lord Bowen declared in Cowell that “the general rule is that poverty is no bar to a litigant”. Individuals, no matter how poor, have always been granted access to our courts regardless of their ability to pay a successful defendant’s costs. Only in egregious circumstances have individuals been ordered to post security for costs.

[20] Examples of such special or egregious circumstances include situations where the plaintiff is or has been a party in multiple other actions (Louie v. Louie, [1998] B.C.J. No. 2097), or where the plaintiff has been unable to produce any evidence in support of his claim many years after commencing the action (Rotvold v. Rocky Mountain Diesel Ltd., [1997] B.C.J. No. 1758). No comparable special circumstances have been shown to exist here and the evidence as to the plaintiff’s alleged impecuniosity is entirely speculative.

[21] The application for security for costs must therefore be dismissed.

[22] The plaintiff seeks an order striking out the statement of defence because the defendants failed to attend an examination for discovery. At the time, the defendants were requesting production of certain documents. Those documents had not been received and, until shortly before the scheduled examination for discovery, counsel for the defendants understood that the former counsel for the plaintiff was still assembling them.

Why Physical Examination Is Not Always Necessary for a "Balanced Playing Field"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that a physical examination is not always necessary for parties to put themselves on a ‘balanced playing field‘ in a personal injury claim.
In this week’s case (De Sousa v. Bradaric) the Defendant appealed from a Master’s decision refusing to permit a second psychiatric independent medical exam of the Plaintiff.  You can click here for my original post discussing the initial applicaiton.
As previously summarized, the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing.  This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions.  She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians.  These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.  For this reason the Master refused to order a second examination.
In the appeal Mr. Justice Smith allowed the introduction of new evidence, specifically a further report from Dr. Davis indicating that he had a terminal illness and will not be able to participate in trial.  The Defendant’s argued that in these circumstances a further exam should be ordered.  Mr. Justice Smith found that while that could be the case, here it was not necessary because the Defendant had already received a report from their second psychiatrist who opined about the Plaintiff’s condition despite not physically examining her.   In dismissing the application the Court provided the following reasons:

[16] The question that arises on the new evidence, given the unavailability of Dr. Davis for trial, is whether the defendant needs a new psychiatric examination to be placed on that all important equal footing. For that purpose I turn to the report of Dr. Vallance that was before the master. This is of course a report that the defendant has, can rely upon at trial, and presumably Dr. Vallance will be available to be cross-examined on it.

[17] Dr. Vallance prefaces his report by stating:

I have not personally examined Ms. De Sousa. Consequently such opinions as I offer in this report are offered only on the understanding that such opinions are significantly limited in the weight that can be given to them absent such an examination.

As a general statement, that is undoubtedly true. However, it must be reviewed in the context of this case and the issues that will be before the court on which medical opinion evidence will be necessary.

[18] Dr. Vallance states that, based on his review of the records, there is no doubt about the fact that the plaintiff now suffers from paranoid schizophrenia. So he does not suggest that he needs to conduct an independent medical examination to confirm or exclude that diagnosis.

[19] The real issue in this case is whether that condition was caused or contributed to by the accident. On that point Dr. Vallance gives a firm opinion. He states:

I believe that if her physical condition and such anxiety as she had arising from the traumata that she experienced had been significant stressors timing the onset of that first episode, then her psychotic illness would have developed sooner rather than later. I believe that her psychosis began out of the blue, as it usually does, and at an age that is usual for the appearance of a first episode.

He then says:

Such diagnoses as paranoid schizophrenia often reveal themselves slowly over time, and therefore, based on the longitudinal history rather than cross-sectional examination, earlier episodes are often diagnosed as other conditions until the full picture is revealed.

[20] Thus on the crucial causation issue, Dr. Vallance’s own report does not support the suggestion that an independent medical examination is needed to place the parties on an equal footing. Indeed he specifically questions the usefulness of a single medical examination and stresses the need to review the entire history, as he has already done, based on the records.

[21] There is also evidence before me from the plaintiff’s family physician that in light of the plaintiff’s present psychiatric condition, a further medical examination at this time will actually be harmful to her health. That prejudice to the plaintiff must, in my view, be considered, although if I thought that a further psychiatric examination was necessary to put the parties on an equal footing, I would have said that means would need to be devised to manage that risk, perhaps with the assistance of the treating psychiatrist.

[22] However, that is not the case here. It appears to me from the evidence of Dr. Vallance that the defendants are in as good a position as they are likely to be to advance their position that this severe psychiatric condition is causally unrelated to the motor vehicle accident. I am not satisfied that a further psychiatric examination will add anything to the matter or will be of any further assistance for the court.

Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception


When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports.  An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“.   The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.
In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision.  The Defendant ran a stop sign and admitted fault for the crash.   The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc.  The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial.  The Defendant argued that the report was responsive and should be admitted.  Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4).  In excluding the report the Court provided the following reasons:



[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon.  The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.  Counsel for the defendant relied upon rule 11-6 (4), which reads:

(4)        Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,

(a)        the responding report, and

(b)        notice that the responding report is being served under this rule.

[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party.  It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3).  Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.

[23] In this case, I found that the report was not limited to true responsive evidence.  It stated the author’s opinion on the nature and cause of the plaintiff’s injury?the central issue that both sides had to address from the outset?and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report.  As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3).  I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.




The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:
[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation.  To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident.  I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…
[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life.  She has back pain on a daily basis, fluctuating according to her activities.  She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain.  The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…
[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.

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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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