Tag: Mr. Justice Voith

“Troublesome” ICBC Surveillance Practices Come Under the Judicial Microscope

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

In the recent case (Williams v. Sekhon) the Plaintiff sustained serious and disabling injuries in a 2013 collision that the Defendant accepted fault for.  In the defence of the claim the Defendants insurer, ICBC, conducted a ‘troublesome‘ amount of surveillance into the Plaintiff’s life.  The Plaintiff requested that special costs be awarded for this.  While the court did not go so far as to award special costs Mr. Justice Voith provided the following lengthy comments setting parameters into what is and is not reasonable surveillance:

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Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision.  At the time of the crash the Plaintiff took his stepfathers car keys without permission.  They lived in the same household.  The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle.  In the course of the evening  the two boys drove around for several hours before the Accident.  Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury.  A jury found the driver negligent and the plaintiff contributorily negligent.  A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent.  The latter test was not applicable on these facts.  The court was asked whether the household member rule was triggered in these circumstances.  The applicable provision of the MVA reads as follows:

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$110,000 Non-Pecuniary Assessment for Likely Permanent Chronic Pain Syndrome

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a collision caused chronic pain syndrome.
In today’s case (Beaton v. Perkes) the Plaintiff was involved in a 2012 rear end collision the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries and related headaches.  Her symptoms persisted and unfortunately developed into a chronic pain syndrome which had a poor prognosis.  In assessing non-pecuniary damages at $110,000 Mr. Justice Voith provided the following findings and reasons:

[14]         There is consensus on the nature, severity and prognosis for most of the injuries Ms. Beaton suffered in the Accident. There is also agreement that these injuries were caused by the Accident. This consensus is found in the two expert reports of Dr. Loewen, as well as in the expert reports of each of Dr. Grover and Dr. Pisesky. Drs. Grover and Pisesky are orthopedic surgeons who did independent medical examinations of Ms. Beaton on behalf of the plaintiff and the defendants respectively.

[15]         These various issues and conclusions are sufficiently straightforward that the cross-examinations of Drs. Loewen and Grover, on these matters, were limited. Dr. Pisesky’s report was filed without his being called for cross-examination.

[16]         Ms. Beaton has been assessed and diagnosed with soft tissue injuries to her neck and upper and mid-back. She has also been diagnosed with cervicogenic headaches. She struggles with serious and ongoing disruptions to her sleep. She is often awake three or four times a night and some evenings she only sleeps for two to four hours.

[17]         There has been no meaningful improvement in these various symptoms and, indeed, Ms. Beaton considers that some of them have worsened over time. I accept that evidence.

[18]         Ms. Beaton has, as recommended, attended at numerous massage and physiotherapy treatments. She has tried trigger point injections. She has attended a work hardening program. There was no suggestion that her efforts were not earnest.

[19]         Each of the experts I have referred to accepts that Ms. Beaton now struggles with chronic pain syndrome. They provided the following opinions on her prognosis:

(a)      Dr. Grover opined that Ms. Beaton will “continue to have some degree of chronic pain which is highly likely to persist permanently”.

(b)      Dr. Loewen said: “Based on my experience treating other patients with similar conditions, I would expect that Mrs. Beaton will have ongoing chronic back pain extending from her neck all the way to her lumbar spine. She may make some small further gains but I would expect most of her symptomology with which she currently struggles to persist long-term. Also of note, due to the injuries sustained in her neck and back, all of which are soft tissue in nature, it is possible that she may be susceptible to injuries with lower amounts of trauma in the future.”

(c)      Dr. Pisesky said: “in terms of overall progress it is my opinion that she … had plateaued in terms of recovery approximately 6 months post injury and therefore her prognosis for any significant improvement of either pain or function is guarded”…

[59]         In the result, I consider that an award of $110,000 fairly compensates Ms. Beaton for her non-pecuniary losses.

ICBC's "Two Hats" Derails Litigation Privilege Claim

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.
In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.
The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.

8 Year Old Too Young To Be Examined for Discovery

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.
In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old.  A lawsuit was brought on his behalf by his litigation guardian.  The Defendants sought to examine the Plaintiff for discovery.  The Court found that this would be inappropriate and dismissed the application.  In doing so Mr. Justice Voith provided the following reasons:

[38]        I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39]        It is generally understood that the central objects of an examination for discovery are:

i)        to enable the examining party to know the case it must meet;

ii)        to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii)       to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40]        The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41]        Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42]        The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43]        First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44]        Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45]        In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.

Late Formal Settlement Offers Still Capable of Triggering Costs Consequences

Two judgement were released this week by the BC Supreme Court demonstrating that formal settlement offers made late in the litigation process are still capable of triggering costs consequences.
In the first case (Dennis v. Fothergill) the Plaintiff was injured in a motor vehicle collision and sued for damages.   The Defendant made a formal settlement offer for $279,000 days before the start of trial.  Following trial global damages of just over $48,000 were awarded.  The Plaintiff argued that no costs consequences should be triggered, in part, due to the timing of the late formal settlement offer.  Madam Justice Bruce disagreed and awarded the Defendants costs and disbursements from the date of the offer onward and stripped the Plaintiff of her costs and disbursements of the trial.  In addressing the timing of the offer the Court provided the following reasons:
[30]         The plaintiff had three days to consider the offer and, while her counsel was out of town at the time the offer was served, she had an opportunity to speak with him by telephone prior to its expiry. The offer was straightforward and did not involve complicated calculations that would have required further time to consider and evaluate. Counsel deposes that the plaintiff’s alcohol consumption was interfering with his ability to obtain instructions from her at the time of the offer; however, the plaintiff’s mental health or state of sobriety was not of such a serious nature that it led counsel to apply for an adjournment of the trial that began within days of the offer. At no time was the Court advised that the plaintiff was unable to testify or appear for her trial due to mental health concerns.
[31]         I find the terms of the offer were clear and unambiguous. The amount of Part 7 benefits and the possible income tax holdback was nominal compared to the amount of the defendant’s offer to settle. The offer was also expressed to be “new money”, which meant in addition to Part 7 benefits paid to the plaintiff in advance of trial. The offer of settlement was clearly not a “nuisance offer” that could be easily dismissed by the plaintiff.
[32]         For these reasons, I find the plaintiff ought reasonably to have accepted the offer of settlement.
In the second case (Brewster v. Li) the Plaintiff was injured in a 2008 collision.   The parties exchanged a series of formal settlement offers, the most relevant of which being a defence offer of $450,000 made 4 days prior to trial.  At trial the Plaintiff sought damages of approximately $1,750,000.  Much of the sought damages were not awarded with a judgement of just over $418,000.
The Plaintiff argued that no costs consequences should accrue.  Mr. Justice Voith disagreed and stripped the Plaintiff of post offer costs and disbursements.  In addressing timing of the offer the Court provided the following reasons:
[25]         The timing of the Last Offer is also relevant. There is no requirement in Rule 9–1, as there was in earlier Rules, that an offer be made within a specific time from the start of trial. In several cases judges have used seven days as a reasonable time to consider an offer; see for example Bailey at para. 39; McIsaac v. Healthy Body Services Inc., 2010 BCSC 1033 at para. 87; Gonzales at para. 51.
[26]         It is clear, however, that this issue is largely driven and governed by context. In Bennett, where the defendant made an offer that was open for two days, Madam Justice Dardi succinctly said:
[34]      Mr. Bennett submits that the Second Offer should be given no force and effect because it was received “some two clear working days before the commencement of the trial.” Rule 37B does not contain the same seven-day notice provision as its predecessor. No inflexible “seven-day” rule is imposed by the Rules; rather every case must be judged on its own facts: Dodge v. Shaw Cablesystems Ltd., 2009 BCSC 1765. The proper issue for consideration is whether, in all the circumstances, the offeree had a reasonable opportunity to consider the offer: Uppal v. Rawlins, 2010 BCSC 11.
[35]      The Second Offer was made shortly before trial. The impact of the lateness of the offer was tempered by Mr. Bennett’s awareness of the settlement negotiations that had previously occurred between counsel. Given Mr. Bennett’s personal knowledge of the material facts as referred to above and his representations to the CRA in April 2005 that he had no interest in the Property, I find that neither the timing of the offer nor the late disclosure of the income tax information negatively impacted his ability to meaningfully evaluate the Second Offer. In all the circumstances, I find that as of November 19, 2008, Mr. Bennett was in a position to reasonably evaluate the Second Offer, that the two days were reasonably sufficient time for him to do so, and that he should have accepted the Second Offer.
[27]         In Enviro West, Madam Justice Boyd considered that an offer which was only open for less than two days provided the plaintiff with adequate time to properly consider the offer. She was influenced both by the fact that the defendants had made an earlier offer that “was not far different” from its last offer and by the fact that the plaintiff was “a sophisticated litigant” (at para. 55).
[28]         In Uppal v. Rawlins, 2010 BCSC 11, Mr. Justice Grauer dealt with an offer that was open for 51 hours and said:
[20]      In this case, although the offer was open for only a relatively short period of time, it was presented just before trial, when all discovery of documents and examinations for discovery had been completed, and when the issues had been fully aired in a Rule 18A application for judgment brought by the defendants. That application was dismissed because the chambers judge found that the case was not suitable for determination by summary trial given the credibility issues. Nevertheless, the position of the defendants was made abundantly clear to the plaintiffs. There would be no surprises at trial. Moreover, the perjury and forgery of the plaintiff Navjeet Uppal had been exposed, and the defendants had obtained admissions on discovery that had seriously imperiled the plaintiffs’ case.
[21]      In all of these circumstances, I have no hesitation in concluding that the offer was one that ought reasonably to have been accepted within the 51 hours or so during which it was open for acceptance. Had the plaintiffs accepted it, they would have saved $26,000 that they will now lose, they would have received $40,000 that they will not now get, they would have saved the time and expense of many days of trial, and they would have avoided all their additional liability for costs.
[29]         Finally, in Wright v. Hohenacker, 2009 BCSC 996, Madam Justice Fisher considered that four days was a reasonable time to weigh an offer in circumstances where the parties “were exchanging offers for a week before” (para. 17).
[30]         In this case counsel for Ms. Brewster emphasized the plaintiff’s emotional frailty. He argued, and she deposed, that she had only been examined for discovery a week or so before the Final Offer was made, that that process had been upsetting to her and further that when she received the Last Offer she felt “doubtful, angry and bullied”.
[31]         Though Ms. Brewster may have felt these things, there was no objective reason to feel bullied. Similarly, the fact that her examination for discovery only took place shortly before the trial does not appear to have been through any fault of the defendant.
[32]         Having said this I do accept that receiving two different offers, which replaced an earlier offer, in close succession and without any explanation, late on the Friday before the week in which the trial started, had the prospect to confuse and be more difficult to deal with. I further accept, having seen Ms. Brewster give evidence, that she would have been somewhat fragile emotionally on the eve of trial.
[33]         Accordingly, different aspects of the considerations raised by Rule 9–1(6)(a) favors each of the parties. On balance, therefore, this consideration is neutral…
[39]         I return to where I started. The dominant object that animates Rules 9–1(5)–(6) is the promotion of reasonable settlements. The plaintiff’s position, that she be awarded the costs of the trial notwithstanding the Last Offer, completely ignores this object.
[40]         I consider that a result which properly gives effect to Rule 9-1(4) and which properly reflects the additional considerations that I have identified, would be to deprive the plaintiff of all of her costs, including all disbursements, after February 11, 2013. This result accords with the result arrived at by the court, for example, in each of Tompkins at paras. 28-31 and Wafler at para. 41.

BC Court of Appeal Discusses Discretionary Costs in Face of Formal Settlement Offers

Reasons for judgement were released this week by the BC Court of Appeal addressing the current landscape of judicial discretion when awarding costs in cases with formal settlement offers in play.
In this week’s case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision.  Prior to trial ICBC made three formal settlement offers, the final being $222,346.  The Plaintiff rejected this offer and proceeded to trial.  A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000.  ICBC applied for post offer costs.  Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements.  Given that the trial lasted 10 days this is a significant financial consequence.
ICBC appealed arguing “the purpose of the appeal on costs was to reverse what he described as a trend in the trial court wherein plaintiffs who succeed in “beating” an offer to settle are routinely awarded double costs but defendants who have made an offer to settle that was rejected but well within the claim value are deprived an order of costs. The defendant says this is unjust. In other words, the defendant submits there should be significant consequences to plaintiffs who fail to accept a reasonable offer.”
The BC Court of Appeal dismissed the appeal finding the trial judge fairly exercised his discretion.  In reaching this conclusion the Court provided the following reasons:
[79]         Pursuant to Rule 14-1(9) of the Supreme Court Rules, Mr. Wafler, as the successful party, is entitled to his costs unless the court orders otherwise. Pursuant to Rule 9-1(4), the court may consider an offer to settle when exercising its discretion in relation to costs. Rule 9-1(5) enumerates the orders the court may make. In making an order under subrule (5), the court may consider the factors listed in subrule (6).
[80]         The purpose for which costs rules exist, as stated in Giles v. Westminster Savings and Credit Union, 2010 BCCA 282, was referred to by the trial judge at para. 18 of his reasons (reproduced at para. 50 above).
[81]         I do not quarrel with the general proposition that a plaintiff who rejects a reasonable offer to settle should usually face some sanction in costs, even in circumstances in which it cannot be said that the plaintiff should have accepted the offer. To do otherwise would undermine the importance of certainty and consequences in applying the Rule. The importance of those principles was emphasized by this court in Evans v. Jensen, 2011 BCCA 279:
[41]      This conclusion is consistent with the importance the Legislature has placed on the role of settlement offers in encouraging the determination of disputes in a cost-efficient and expeditious manner. It has placed a premium on certainty of result as a key factor which parties consider in determining whether to make or accept an offer to settle. If the parties know in advance the consequences of their decision to make or accept an offer, whether by way of reward or punishment, they are in a better position to make a reasoned decision. If they think they may be excused from the otherwise punitive effect of a costs rule in relation to an offer to settle, they will be more inclined to take their chances in refusing to accept an offer. If they know they will have to live with the consequences set forth in the Rule, they are more likely to avoid the risk.
[82]         That said, under the present Rule, unlike its predecessor which mandated the result, it is for the trial judge to determine in any particular case the nature and scope of whatever sanctions are to be applied. The permissive wording in Rules 9-1(5) and (6) indicates the legislature intended to preserve the historically discretionary nature of costs awards, including an award of costs where an offer to settle has been made.
[83]         In my opinion, the judge adequately considered the factors under Rule 9-1(6) which were relevant in this case. Most significantly, the defendant’s contention that the plaintiff in this case did not suffer any consequences from his failure to accept the offers to settle ignores the fact that, as a successful party, he was deprived of his costs and disbursements from December 21, 2011, approximately six weeks before the jury’s verdict made on February 3, 2012. The verdict followed a ten day trial. Thus, the impact of the judge’s costs order was to deprive Mr. Wafler of taxable costs for the preparation of and attendance at a ten day trial, together with disbursements incurred after the offer, which presumably included fees for attendance by experts.
[84]         In these circumstances, I do not think it can be fairly said that the plaintiff in this case was not penalized for his failure to accept the defendant’s offer. In my view, the costs order reflected the underlying purpose of Rule 9-1.
[85]         In the result, I would dismiss the cross-appeal.
 

Who Should Address Costs Following a Mistrial?

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing a technical procedural issue, namely which judge should address a costs application following a mistrial.
In this week’s case (Walker v. Doe) the Court declared a mistrial on the 14th day of a Jury trial following closing submissions of counsel for the plaintiff.  The Defendant sought costs and an issue arose about who was best to address this, the presiding judge for the initial trial or the judge who would ultimately oversee the mistrial.  The Court held it was appropriate, in the circumstances of this case,  for the initial judge to address the costs issue.  In reaching this conclusion Mr. Justice Voith provided the following reasons:
[12]         The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.
[13]         The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed…
[24]         The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:
[61]      This trial was difficult for all concerned. Ms. Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.
[25]         The foregoing comments are apposite. Notwithstanding the passage of time, my memory of the trial and of the matters leading to the mistrial remains good. My memory of many events remains vivid. Counsel for Mr. Walker sought to argue that another judge, with the benefit of transcripts and the Mistrial Ruling, would be in an equally good position to address the instant application. I do not think that this is so…
29]         I do not consider that another trial judge could address such submissions as readily or as easily as I could. This is so even if extensive transcripts from the first trial were ordered…
[30]         I consider that the foregoing considerations remove this application from the ambit of the “general rule” referred to in Joy and that I should hear the defendant’s application.
[31]         I have also considered whether, having arrived at the foregoing conclusion, I should defer dealing with the substance of the application until after the appeal of the Mistrial Ruling. This would have the benefit of avoiding the costs that would be incurred in hearing the application and that would be wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or, indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I expect, having regard to the history of the matter, that any cost order I make will likely be appealed in any event. On balance I consider it better and more efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual reasons from the cost application available before the hearing before the Court of Appeal takes place.

$210,000 Non-Pecuniary Assessment for Moderate-Severe Traumatic Brain Injury

Adding to this site’s database of ICBC cases dealing with non-pecuniary damages for traumatic brain injury, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In this week’s case (Payne v. Miles) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk. Although fault was initially disputed the Defendant accepted blame for the crash on the second day of trial.  The Plaintiff suffered moderate to moderate-severe brain injury with ongoing complications which were expected to be permanent.  In assessing non-pecuniary damages at $210,000 Mr. Justice Voith provided the following reasons:
[44]         The medical experts agree that Ms. Payne suffered a moderate to moderate-severe brain injury. Her CT scans and MRI results depict changes that are consistent with an injury to the right temporal lobe.
[45]         The experts also state that the Accident occurred at a critical time in her development as she was preparing to make the transition from adolescence to independent adulthood (Dr. Anton); that it occurred at a time that negatively impacted her educational and vocational potential (Dr. Mok); and that an injury “in these formative years has a significant impact on [the plaintiff’s] ability to establish her own self-identity” (Dr. Foti)…
[79]         The Accident has fundamentally transformed and diminished Ms. Payne’s life. She lives a largely solitary existence. She has struggled with her sleep and with headaches as well as with serious depression and anxiety. Though these conditions have, in the main, either resolved or are in remission, she continues to have periods of low mood. She has periodic hallucinations. She sleeps with both the lights and television in her bedroom on as a means of dealing with these hallucinations. And she struggles with anger, irritability and periodic outbursts.
[80]         She has and will continue to have various forms of cognitive impairment. She has difficulties with memory, concentration and various forms of executive function. She has difficulty processing information. She is limited in her ability to read to periods of perhaps ten minutes. She struggles significantly with mental fatigue which, in turn, limits what she can achieve and which exacerbates her cognitive and emotional difficulties. She becomes overwhelmed and has meltdowns.
[81]         Her difficulties influence the most commonplace of activities. Though she drives without difficulty, she becomes anxious in new places. While she can use her computer and her cell phone without difficulty, relatively rudimentary computer programs have proven to be beyond her.
[82]         She has consistently failed or struggled in her academic endeavors. She has been constrained in her employment efforts to low or entry-level employment. These struggles and failures have influenced her confidence and self-image.
[83]         Her career and educational prospects are diminished. I will develop this evidence when I address Ms. Payne’s wage loss claim. At this point, I am focusing on the pleasure a person derives from school and from finding employment that is rewarding or fulfilling.
[84]         Her ability to live independently is impaired. She will have to be assisted on an ongoing basis with the various changes that life will inevitably bring. She will, for example, require assistance if she has children. In saying this I am addressing the loss of freedom and independence, so often taken for granted, that Ms. Payne will suffer.
[85]         Though her recovery has plateaued, she is at risk of further and ongoing difficulty. Dr. O’Shaughnessy opined that persons who have suffered from a major depression are at a 50% risk of suffering from a further period of depression. She is at greater risk of mood disorders and anxiety, of seizures, of bipolar disorders and of illnesses such as Alzheimer’s. She is more likely to get divorced. If she were to suffer a further brain injury or stroke, her “cognitive reserves” are depleted beyond what they would otherwise be. Simply put, she would be in a poorer position to respond and recover. Each of the foregoing conclusions arises directly from the opinions I was provided. None of these conclusions was challenged.
[86]          Dr. Anton opined that there is some risk, though relatively small, of further declines in her cognitive functioning. He also stated that, while some decline in function is associated with normal aging, Ms. Payne is at risk of a more rapid decline in such function.
[87]         All such risks or eventualities would further diminish Ms. Payne’s enjoyment of life…
[90]         In the result, and having regard to the foregoing authorities as well as the additional case law I was provided, I consider that an award of $210,000 fairly and reasonably compensates the plaintiff for her non-pecuniary loss.

Plaintiff Stripped of Post Offer Costs and Disbursements For Failing to Beat Formal ICBC Settlement Offer

In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision.  Prior to trial ICBC made three formal settlement offers, the final being $222,346.  The Plaintiff rejected this offer and proceeded to trial.  A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000.  ICBC applied for post offer costs.  Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements.  Given that the trial lasted 10 days this is a significant financial consequence.  In finding this appropriate Mr. Justice Voith provided the following reasons:
[41]         There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.

Contact

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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