Tag: Mr. Justice Tindale

$105,000 Non-Pecuniary Assessment For Major Depression and Conversion Disorder With Seizures

Reasons for judgement were published today by the BC Supreme Court, Prince George Registry, assessing damages for chronic psychological injuries following a collision.
In today’s case (Chevalier v. Gray) the Plaintiff was involved in a 2014 collision.  It was a t-bone type impact and the Defendant accepted fault.
As a result of the crash the plaintiff suffered a major depressive disorder along with conversion disorder with accompanies seizures.  Prognosis for full recovery was poor and the injureis were partially disabling.  In assessing non-pecuniary damages at $105,000 Mr. Justice Tindale provided the following reasons:

[258]     In this case the plaintiff suffered musculoligamentous strains of the cervical spine as well as mild headaches, a mild strain of the thoracic area and a muscular strain of the lumbar spine. She also sustained a wrist injury.

[259]     The defendant had a duty of care to the plaintiff to take reasonable care to avoid causing her physical and mental injuries.

[260]     The plaintiff certainly had pre-existing vulnerabilities to her mental health. Dr. Tomita however opined that the MVA was a predominant cause of both her conversion disorder and major depression. Dr. Udamaga opined that the MVA was a predominant factor that precipitated a decline in her mental health leading to a diagnosis of conversion disorder.

[261]     The evidence discloses that the plaintiff thought her vehicle was on fire when she was trying to extricate her elderly mother from the vehicle. She developed a sense of guilt about causing her mother’s injuries and ultimate death even though she was not at fault for the MVA.

[262]     Both Dr. Tomita and Dr. Udamaga testified that it was unlikely that the plaintiff would have developed conversion disorder absent the MVA.

[263]     The evidence discloses that the effects of the mental injuries to the plaintiff have been pronounced, long-lasting and debilitating.

[264]     The evidence also discloses that symptoms of the conversion disorder in the form of the plaintiff’s legs twitching regularly and for a prolonged period of time and as Mr. Chevalier described her shivering as if she was cold started shortly after the MVA. These symptoms became very pronounced in September 2014.

[265]     Taking into account all the evidence on this case the MVA was a material contributing cause to the plaintiff’s physical injuries and to her psychological injuries. The plaintiff was involved in a serious motor vehicle accident where she was physically injured and witnessed her ailing mother being injured. It is reasonably foreseeable that the plaintiff would suffer psychological injury.

[266]     But for the MVA the plaintiff would not have received the physical injuries that she did as outlined by Dr. Laidlow and would not have developed a major depressive disorder and a conversion disorder with seizures…

[270]     Taking into account the plaintiff’s condition prior to the MVA, the plaintiff’s injuries and poor prognosis, the effects that her psychological injuries have had on her personal and work life and the case authorities provided by the plaintiff an appropriate award for non-pecuniary damages is $105,000.  This takes into account the real and substantive future possibilities, both positive and negative that could impact the plaintiff’s life.  In this case, it is primarily the negative possibilities caused by her pre-existing chronic pain and intermittent mood disorders that must be accounted for.

$85,000 Non-Pecuniary Assessment for L1 Fracture and Concussion

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in two collisions.
In today’s case (Wiebe v. Weibe) the Plaintiff was involved in two crashes, the first in 2012 the second in 2013.  The first collision caused a fracture at the L1 level of the Plaintiff’s spine along with a concussion.  The second aggravated some of her symptoms.  By the time of trial she was left with some residual barriers due to her injuries as well as lingering pain.  In assessing non-pecuniary damages at $85,000 Mr. Justice Tindale provided the following reasons:
[183]     I accept that the plaintiff suffered an L-1 fracture as well as an injury to her mid back. I also accept Dr. Reddy’s diagnosis that the plaintiff suffered a concussion which is in keeping with the plaintiff’s description of her injuries after the First Accident….

[185]     The plaintiff was virtually couch bound for a number of weeks after the First Accident.

[186]     The plaintiff suffered a considerable weight gain after the First Accident though she has ultimately lost that weight. The plaintiff is currently physically active, able to run on a regular basis as well as attend a gym.

[187]     The plaintiff still suffers from mid back pain though there has been significant improvement in her condition…

[190]     The plaintiff in the case at bar suffered a serious injury to her low back as well as injuries to her mid back. She also suffered a concussion and developed anxiety which had an impact on her daily life for a number of months after the First Accident.

[191]     Considering the inexhaustive list of common factors in Stapley and the fact that the plaintiff continues to suffer pain I conclude that damages of $85,000 are appropriate for this head of damage.

$50,000 Non-Pecuniary Assessment for Mild Soft Tissue Injuries With Somatic Disorder

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for soft tissue injuries with psychological overlay caused by a collision.
In today’s case (Zaluski v. Verth) the Plaintiff was involved in a 2011 collision caused by the Defendant.  Fault was admitted.  The Court did not accept all of the Plaintiff’s evidence but did accept the collision caused soft tissue injuries with a somatic disorder.  In assessing non-pecuniary damages at $50,000 Mr. Justice Tindale provided the following reasons:

142]     Based on all of the evidence I do however accept that the plaintiff did receive a mild soft tissue injury to her neck which affected her shoulders and back. I also accept Dr. Riar’s evidence that the plaintiff as a result of the MVA as suffered a somatic symptom disorder as well as anxiety and depression. I do not accept that the plaintiff has been disabled for any lengthy period from working as a result of these injuries. She was able to work significant hours at the Phoenix Medical Imaging well after the MVA. She only missed one day of work from the Nechako Medical Clinic as a result of the MVA.

[143]     In my view the plaintiff has exaggerated the severity and duration of her physical symptoms. I do not accept that her psychological condition disabled her from working.

[144]     The plaintiff does not suffer from disorders such as fibromyalgia, Post Traumatic Stress Disorder or severe and prolonged headaches. The cases that the plaintiff relies upon are of individuals who are much more seriously injured than the plaintiff in this case and have many of the above noted disorders…

[147]     In my view given the nature and duration of both the plaintiff’s physical and psychological injuries and considering the factors in Stapley the appropriate amount for non-pecuniary damages is $50,000.

Expert Opining on All Plaintiff Injuries Disentitles Second Defence Medical Exam

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, denying a second defence medical exam in circumstances when their first examiner opined on all the Plaintiff’s alleged injuries.
In today’s case (Monohan v. Yang) the Plaintiff was examined by a neurologist of the Defendant’s choosing.  The Defendant sought a second exam with an orthopedic surgeon arguing the Plaintiff was alleging “two distinct categories of injuries, those being neurological and musculoskeletal injuries which require both a neurological and orthopedic assessment.”.
The application was dismissed on the basis that the Defendant’s first chosen examiner opined on all these issues thus making a second exam unnecessary.  In dismissing the defence application Mr. Justice Tindale provided the following reasons:

[21]        In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

[10]      Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives . . .

[11]      Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” . . . 

[12]      Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report . . .

[13]      A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination . . .

[14]      There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff  . . .

[15]      The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary . . .

[16]      Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances . . .

[22]        In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries.  The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

[23]        While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries. 

[24]        Dr. Moll did raise the new issue of a psychological injury.  However, an orthopedic surgeon cannot address that issue.

[25]        For all of the above‑noted reasons, the defence application is dismissed.

Failure To List Documents Leads To Expert Report Exclusion

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, excluding an expert report for failing to disclose a list of documents reviewed.
In today’s case (Lawrence v. Parr) the Plaintiff was involved in a 2010 collision and sued for damages.  The Plaintiff alleged that the collision caused some hearing loss.  Prior to trial the Defendant served a report from an otolaryngologist which opined that the hearing loss was not from the collision.  The report was criticized for a number of reasons including being served beyond the timelines required under the Rules of Court.  The report as ultimately excluded from evidence with Mr. Justice Tindale noting that the expert’s failure to list documents reviewed and relied on was a fatal error.  In excluding the report the Court provided the following reasons:

[126]     Rule 11-6 (1) states a number of mandatory requirements of an expert report. Dr. David’s report did not contain the certification required under Rule 11-2 (2) though that was remedied at a later date. It does not contain the instructions provided to Dr. David. His report is not clear as to the nature of the opinion being sought and the issues in the proceeding to which the opinion relates. But most importantly it does contain a description of the factual assumptions on which his opinion is based. There is not a comprehensive list of the documents that he relied on. Where he does discuss a document that he relied on he either makes vague, inaccurate or misleading references to that document.

[127]     I am mindful of Rule 11-7 (6) however. The admission of this report will cause prejudice to the plaintiff because despite a very lengthy cross-examination it is not clear what the purpose of Dr. David’s report was and what his factual assumptions were.

[128]     In my view, for all the above noted reasons Dr. David’s report and evidence at the video deposition are inadmissible.

$55,000 Non-Pecuniary Assessment For Chronic Headaches Secondary To Neck Injury

Adding to this site’s archived caselaw addressing damages for headaches, reasons for judgment were released this week by the BC Supreme Court, Prince George Registry, dealing with such an injury.
In this week’s case (Rutledge v. Jimmie) the Plaintiff was involved in a 2011 collision in Quesnel.  The Defendant was found fully at fault.  The Plaintiff suffered a neck injury which caused secondary headaches which continued at the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $55,000 Mr. Justice Tindale provided the following reasons:
100]     The plaintiff, based on the preponderance of evidence, has clearly established that the motor vehicle accident caused him to have chronic post- traumatic headaches related to a neck injury.
[101]     This injury has caused significant changes to his lifestyle, particularly to his passion for powerlifting. He has also had to modify his lifestyle with regard to recreational activities, activities at home and some of his activities at work. I am mindful that the plaintiff did not miss any employment as a result of this accident; however, I also accept that he is a stoic individual and persevered in his employment…
[103]     Dr. Robinson opined that despite the success of the Botox treatment, the plaintiff’s headaches may continue to linger for many years to come although at a lower frequency and severity than the plaintiff is experiencing now.
[104]     The majority of the cases relied on by the plaintiff have fact patterns which are far more serious than the case at bar. Likewise, the cases relied on by the third party do not appropriately address the significant lifestyle changes and pain suffered by the plaintiff.
[105]     In my view the appropriate award for non-pecuniary damages is $55,000.

$110,000 Non-Pecuniary Assessment for Psychological Injuries Following Fatal Collision

Adding to this site’s database of archives caselaw addressing psychological injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages following psychological injuries following a severe motor vehicle collision.
In last week’s case (Rizzotti v. Doe) the Plaintiff was injured in a 2005 head-on collision.   The crash was significant killing the driver of the offending vehicle.  Fault was admitted.  The Plaintiff suffered from psychological injuries following this crash including PTSD, depression and an adjustment disorder.
The Plaintiff’s injuries were aggravated in two subsequent collisions.  All three cases were heard together and damages were assessed globally.  In assessing non-pecuniary damages at $110,000 Mr. Justice Tindale provided the following reasons:

]The plaintiff was clearly involved in a serious head-on collision in 2005. She sustained injuries of a physical nature and a psychological nature. The evidence is clear that the first accident caused the majority of the injuries to the plaintiff while the other two accidents exacerbated her condition.

[76]The medical evidence is clear that the physical injuries were caused by the accidents. The medical evidence is also clear that her psychological injuries were caused by the accidents.

[77]Dr. Anderson diagnosed the plaintiff as having ongoing depressive symptoms consistent with a diagnosis of chronic adjustment disorder with depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic stress disorder in partial remission.

[78]The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic stress disorder. Both doctors Anderson and Kettner had the advantage of personally interviewing the plaintiff.

[79]Dr. Levin agreed with the diagnosis of adjustment disorder with depressed mood however he did not feel that the plaintiff had post-traumatic stress disorder. Dr. Levin only reviewed the medical documentation and did not interview the plaintiff.

[80]I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr. Levin as they were able to personally interview the plaintiff.

[81]The evidence in this case clearly indicates that the plaintiff suffered physical injuries which are long-standing and chronic in nature as well as a serious psychological injury.

[82]The defendants have not discharged their onus that the plaintiff failed to mitigate her losses by failing to take medication. The evidence does not disclose on a balance of probabilities that she was prescribed antidepressant medication. Also, with regard to the plaintiff declining to have injections in her hip, there is no evidence that this delayed her recovery. She also gave evidence that she was afraid of injections, which I accept

[83]The appropriate award for non-pecuniary damages is $110,000.00.

Defence Medical Doctor Given "Very Little Weight" For Failing to Examine Plaintiff

As previously discussed, the failure of a doctor to examine a Plaintiff is not, in and of itself, a barrier to the physician from providing opinion evidence to the BC Supreme Court, however, often little weight is attached to a doctor’s opinion in such circumstances. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Rizzotti v. Doe) the Plaintiff suffered psychological injuries in a serious collision in which the offending motorist died. At trial the Plaintiff tendered expert evidence addressing the extent of her injuries. The Defendant tendered a report from a psychiatrist, Dr. Levin, who disagreed with the Plaintiff’s experts with respect to the extent of her accident realted psychological injuries.
Dr. Levin did not examine the Plaintiff prior to authoring his report and in the course of trial acknowledged that “that he could not do a proper assessment without interviewing the plaintiff“. The court accordingly provided little wieght on Dr. Levin’s opinion and provided the following reasons:
[27] Dr. Levin is a psychiatrist tendered by the defendants as rebuttal evidence to the opinion of Dr. Anderson. The plaintiff objected to the admissibility of Dr. Levin’s report during this trial. I declared a voir dire to allow the plaintiff to cross-examine Dr. Levin and make argument as to the admissibility of the report. I ultimately found that the report was admissible, however I initially told counsel that I would be putting very little weight on the report as Dr. Levin did not interview the plaintiff…

34] For the above noted reasons I ruled Dr. Levin’s report admissible and I ruled that his evidence on the voir dire would form evidence on the trial proper.

[35] I have already explained that I am putting little weight on Dr. Levin’s report because he did not interview the plaintiff. Dr. Levin himself testified that he could not do a proper assessment without interviewing the plaintiff.

"What's This Lawsuit All About?" Examination For Discovery Caselaw Update


In my ongoing efforts to archive BC caselaw addressing examinations for discovery, reasons for judgement were released this week by the BC supreme Court, Prince George Registry, discussing the scope of permissible questions.
In this week’s case (Manojlovic v. Currie) the parties were involved in litigation with respect to a purchase and sale agreement relating to lakeshore property.   In the course of the lawsuit the Defendant was examined for discovery during which time he was asked to “tell me in your own words what this lawsuit is all about“.
The Defendant objected arguing this question was inappropriate.  Mr. Justice Tindale disagreed and concluded this question was fair game.  In doing so the Court provided the following reasons:

13] The tone of the examination for discovery was set by Mr. Hall, counsel for the defendants William Richard Currie and Patsy Arlene Currie, at the beginning of the examination.  Mr. Dungate asked the defendant William Richard Currie the following:

9 Q      One of the things I want to accomplish today, Dr. Currie, is I’d like to better understand this lawsuit from your perspective and your wife’s, so perhaps you can tell me in your own words what the lawsuit is about.

Mr. Hall:           Stop. That’s not the process, Mr. Dungate. You ask questions; he answers them.

10 Q    Mr. Dungate: This is my examination for discovery. I’m asking the questions. I just asked Dr. Currie to explain to me what the lawsuit is about. So, what’s the lawsuit about, Dr. Currie?

[14] The plaintiff wishes to ask questions relating to the pleadings in these proceedings. These types of questions were objected to during the examination for discovery. However, Mr. Wright, who was Mr. Hall’s agent for this application, is not opposed to these types of questions but rather argues that they should not relate to questions of law, or questions that had already been asked and answered at examination for discovery.

[15] In my view, the questions asked by Mr. Dungate relating to the pleadings were appropriate. I also agree with Mr. Wright that these types of questions should not relate to questions of law…

[21] An examination for discovery is similar to cross-examination at trial. The plaintiff, in this case, should have been given a wide latitude to explore the relevant issues in the time allotted by the Rules. The Plaintiff was not able to do this on many of the issues that he was trying to explore.

[22] I order that the defendant William Richard Currie shall attend and submit to a further examination for discovery which will have a maximum duration of four hours. This examination for discovery shall be set in consultation with counsel for the plaintiff and counsel for the defendant William Richard Currie.

[23] I order that the plaintiff will be at liberty to ask questions relating to the “pleadings” and the letter marked as “Exhibit 29” at the examination for discovery held on March 9, 2012.

$40,000 Non-Pecuniary Assessment for "Longstanding" Soft Tissue Injuries Caused by Impaired Driver

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, assessing damages for long standing soft tissue injuries.
In this week’s case (Hahn v. Barnes) the Plaintiff was injured in a 1998 collision.  He was 5 years old at the time sitting as a passenger in a vehicle that was rear-ended by the Defendant.  The Defendant was found fully at fault with the Court noting that she was “under the influence of alcohol and not paying attention to her driving“.
The Plaintiff was 19 by the time of trial and testified that he sustained injuries to his neck and back and that his symptoms carried on since the collision.  The Court accepted this evidence and assessed non-pecuniary damages at $40,000.  In doing so Mr. Justice Tindale provided the following reasons:

[71] Credibility is the central issue in this case. I have had an opportunity to view the plaintiff, his mother, his father and his soccer coach Mr. Pohl give evidence. I accept that they are all honest witnesses. There are no notations regarding the back problems of the plaintiff in the clinical records of Dr. McKinley. Unfortunately, Dr. McKinley is not here to give evidence regarding the accuracy of his clinical records. I accept the evidence of the plaintiff, Sharon Hahn, and Keith Hahn regarding the plaintiff’s back symptoms. I find the plaintiff’s back symptoms are from the motor vehicle accident on June 16, 1998.

[72] I also accept the plaintiff’s, Sharon Hahn’s and Keith Hahn’s evidence relating to the neck symptoms. The plaintiff clearly had neck pain after the accident and there was some radiographs suggesting pre-cervical soft tissue swelling at the time of the accident. I find that the plaintiff’s neck symptoms are from the motor vehicle accident of June 16, 1998. I also find, given the evidence of doctors Dommisse and Travlos, the plaintiff’s neck and back symptoms can be defined as chronic in nature…

[76] In this case, the plaintiff is young, and has a long standing neck and back injury. However, the plaintiff’s injuries are not severe or disabling. I do not have any evidence that the injuries have caused the plaintiff any emotional suffering…

[78] An appropriate award for Non-Pecuniary damages, given the length of the plaintiff’s symptoms and the nature of the neck and back strain, is $40,000.

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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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