Tag: Mr. Justice Walker

Motorist Ordered To Pay $34,980 in Damages Following “Road Rage Incident”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.

In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel.   The Plaintiff was concerned that the Defendant was not paying adequate attention.  The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant.  The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.

The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages.  Mr. Justice Walker provided the following findings regarding liability:

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$90,000 Non Pecuniary Assessment for Chronic and Partly Disabling Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries with a poor prognosis for recovery.

In today’s case (Sen-Laurenz v. Napoli) the Plaintiff was involved in a 2014 collision which the Defendant accepted fault for.  The Plaintiff was described as a “highly motivated and at that time physically fit 20-year-old plaintiff was attending Capilano University in North Vancouver and was in the early stages of pursuing her career goal to become a medical doctor. “.  The crash resulted in chronic soft tissue injuries which did not fully recover.  The residual symptoms were expected to be present indefinitely.  The injuries impeded her education and delayed her entry into medical school.  In assessing non pecuniary damages at $90,000 Mr. Justice Walker provided the following reasons:

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Traffic Signal Sequence Evidence Resolves Liability Dispute

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating the potential value of traffic signal sequence evidence following an intersection collision.
In this week’s case (Kuma-Mintah v. Delange) the Plaintiff and Defendant were involved in an intersection collision.  The Plaintiff was heading westbound through a T-intersection.  At the same time the Defendant was attempting a left hand turn.  Both motorists claimed to have a green light arguing the other was to blame.  Evidence of the intersections traffic signal sequence ultimately proved important in resolving the dispute.

The Defendant initially gave evidence that she was stopped at the intersection for 30 seconds before the light turned green.  However traffic signal sequence evidence demonstrated that the vehicle would have only had to wait 11.3 seconds before changing sequence.  This ultimately undermined the reliability of the Defendant’s evidence.  In highlighting the significance of this evidence Mr. Justice Walker provided the following reasons:
[19]         Ms. Delange claims to have been stopped facing south at the Intersection on a red traffic signal. She said that she waited to turn left to head eastbound on the Lougheed Highway before the signal facing her turned to green. Once the traffic signal facing her turned to green, she proceeded slowly into the Intersection. As she did, she heard her husband, who was sitting behind her in the passenger seat on the left side of the vehicle, yell out that Mr. Kuma-Mintah’s vehicle was not going to stop. The collision occurred.
[20]         There was a period of time while she was giving evidence during the trial when Ms. Delange sought to move away from her wait-time estimate of 30 seconds that she gave at her examination for discovery. Her discovery evidence was very clear on the point. She also suggested the possibility that other vehicles were present at or near the Intersection. The evidence from the traffic engineer concerning the traffic signal sequence for the Intersection, which was not expert evidence, became known to Mr. Kuma-Mintah’s counsel only a few days before the trial began and to defence counsel shortly before the start of the trial (no adjournment of the trial was sought by the defence). While I do not consider that Ms. Delange, in providing new evidence suggesting a different wait-time and the possibility of other vehicles at or near the Intersection, was attempting to provide dishonest or misleading testimony following the recent disclosure of the traffic engineer’s evidence, her attempt to explain away her very clear discovery evidence was indicative of her ongoing struggle to comprehend how the accident could have occurred. I accept that she was trying to provide an overall account that she thought was truthful; it was, however, an account that was premised on post hoc reasoning…
[24]          Ms. Delange’s vehicle was the only one present at or near the Intersection that could have triggered any of the embedded traffic sensors. And as I have pointed out, I find that other than Ms. Delange’s vehicle, there was no traffic on the Lougheed Highway or United Boulevard during the relevant time before the accident occurred that would have made any difference to the traffic signals affecting Mr. Kuma-Mintah. That means that if Ms. Delange was stopped at the Intersection as she claims, then she would have been waiting for only 11.3 seconds, and not 30 seconds, before she could proceed to make her left-hand turn. Her vehicle would have automatically triggered the various traffic signals controlling the Intersection to change in accordance with the sequence design….
[29]         I find that Ms. Delange proceeded into the Intersection on a red traffic signal and collided with the vehicle being driven by Mr. Kuma-Mintah, contrary to s. 129(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Mr. Kuma-Mintah was entitled to proceed through the Intersection on a green traffic signal pursuant to s. 127(1). I accept his explanation that there was insufficient time for him to have taken evasive action.
[30]         My findings are made on a balance of probabilities. My determination of fault is premised on the clear objective evidence concerning the sequence design of the traffic signals and the evidence of the accident reconstruction expert contained in his report. My determination is only partly derived from my assessment of the credibility of the witnesses when they gave their testimony. I have determined that the description provided by Mr. Kuma-Mintah is in “harmony with the preponderance of probabilities”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Gariepy v. Ritchie, [1993] B.C.J. No. 2304 (S.C.); and Hou v. McMath, 2012 BCSC 257 at para. 27.

Facebook Strikes Again

In yet another example of a personal injury claim being undermined by postings on social media, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating a Facebook posting undoing a claimed damage.
In this week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  She sued for damages and her claim was partially successful.  An aspect of her claim that was not accepted dealt with driving anxiety.
The Plaintiff claimed that one of the consequences stemming from the collision was “a driving phobia“.  The Court did not accept this finding that the Plaintiff was “an unreliable historian“.  In coming to this conclusion the Court referenced the Plaintiff’s own Facebook posting and provided the following reasons:
[126]     Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:
Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ?’s Speedy G).
[127]     I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”
[128]     Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.
[129]     I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.
[130]     In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.

"Significant Prejudice" Bars Admission of Late Defence Rebuttal Report

As previously discussed, Rule 11-7(6) allows the BC Supreme Court to admit expert evidence that does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this discretionary power in cases where prejudiced is caused by the late report.
In last week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  The Defendant proceeded to trial with only one expert report which was served well outside of the timelines required by the Rules of Court.  The Defendant asked the Court to allow the report into evidence arguing that there would be severe prejudice if the report was excluded as “it is the only medical evidence available to him to tender into evidence“.
Mr. Justice Walker refused to allow the report in finding the Plaintiff would be prejudiced by depriving her adequate time to prepare for cross-examination.  In so finding the Court provided the following reasons:
26]         I am satisfied that plaintiff’s counsel has, through no fault of his own or of his client, not been able to properly consult with his client’s medical experts to determine the answers to those questions. It is also clear to me that standing the trial down for a half day or day or two does not afford the plaintiff and her counsel the opportunity to properly respond to Dr. Bishop’s report, even if it was admitted on a redacted basis.
[27]         In all, I am satisfied, from counsels’ submissions and from the nature of the evidence given by the medical experts to date, that plaintiff’s counsel may well have approached the preparation and prosecution of his client’s case quite differently if he had known that Dr. Bishop’s report was to be admitted…
[32]         As a result of his position concerning terms, which in my respectful view seeks to constrain the outcome of the application to the defendant’s greatest advantage, I conclude that the defendant cannot meet the requirements of Rule 11-7(6)(b).
[33]         Lastly, turning to sub-rule (c), as Savage J. noted in Perry, there must be some “compelling analysis” why the interests of justice require the Court to exercise its discretion to allow the “extraordinary step” of abrogating the requirements of the Rules. None was presented by the defendant in submissions. Moreover, I find that the circumstances of this case, particularly the dilatory conduct of the defendant, do not compel me to exercise my discretion under sub-rule (c) to admit Dr. Bishop’s report into evidence without an adjournment on terms. To otherwise admit Dr. Bishop’s report would not be in the interests of justice.
[34]         As a result, the defendant’s application is dismissed. Dr. Bishop’s report will not be admitted into evidence.

Double Costs Awarded Following Liability Trial With Formal Settlement Offer In Place


One issue that was unclear under the new BC Supreme Court Rules was weather a formal settlement offer could trigger costs consequences following a liability only trial with quantum of damages still outstanding.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, answering in no uncertain terms that this was possible.
In this week’s case (Pike v. Dandiwal) the Plaintiff was injured in a 2007 collision.  Liability was disputed.  A liability only trial was heard and ultimately the Defendant was found wholly at fault for the crash.  Prior to trial the Plaintiff issued a formal settlement offer addressing the liability issue.  The Defendant provided a global settlement offer with a specific quantum.  Having succeeded on the issue of liability the Plaintiff sought double costs.
The Defendant argued that “costs should not be determined until after the assessment of damages because if Mr. Pike does not beat the dollar amount of the defendants’ offer, he should be denied his costs not only in respect of that (second) trial but this trial in which he was successful.“.  In rejecting this submission the Court noted that “no caselaw has been provided in support of this submission“.  In awarding double costs Mr. Justice Walker provided the following reasons:
[38]         In my view, double costs should be awarded to Mr. Pike. I find it most troubling that defence counsel has not brought me any case law to support his submissions. We are now at 5:05 p.m. I am going to impose a stay on the operation of my judgment for costs for 48 hours to allow the defendants the opportunity to find case law that supports their position, because the last thing I wish to do is commit an error in law.
[39]         If the defendants find that case law and wish to seek to have me reconsider my decision, I will hear it, so long as I receive advice of that by next Wednesday at noon through Trial Scheduling. Otherwise, the order will stand that the defendants pay double costs to Mr. Pike.
The Court then confirmed this result in supplementary reasons once no case-law was produced with the following reasons:
[1]             In my oral Reasons for Judgment dated October 5, 2012, I awarded double costs to the plaintiff.  I allowed counsel for the defendants 48 hours to provide me with case law supportive of their costs submissions.  On October 11, 2012 counsel for the defendants advised me through Trial Scheduling that no case law was located.  Accordingly, the plaintiff is entitled to an award of double costs.

Defence Doctor Opinion Rejected for Not Physically Examining Plaintiff


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, providing comments critical of the practice of obtaining medical opinion evidence without accompanying physical examination of a Plaintiff.
In this week’s case (Ruscheinski v. Biln) the Plaintiff was involved in three collisions.  She sustained soft tissue injuries to her her neck and shoulder in the initial crash.  The following crashes had a ‘cascading effect‘ on these injuries resulting in chronic pain with partial disability.  Non-Pecuniary Damages of $85,000 were assessed.
In the course of the trial the Court heard from competing expert witnesses.  The Defendant’s expert never examined the Plaintiff.  For this reason the Court preferred the evidence of the Plaintiff’s experts and provided the following critical comments:

[82] Dr. Turnbull, a neurosurgeon, provided expert evidence on behalf of the defendants. He was the only medical expert whose opinion was adduced as part of the defendants’ case. His assessment is set out in his report dated April 26, 2011.  In his report, Dr. Turnbull opined:

Ms. Ruscheinski evidently suffered soft tissue injuries in the MVA of February 24, 2006 which may have been aggravated by the MVAs of September 9 and September 17, 2006.

[83] In my opinion, Dr. Turnbull’s choice of the word “evidently” results from the fact that he did not conduct an examination of Ms. Ruscheinski. Dr. Turnbull has not met, nor has he ever examined Ms. Ruscheinski. His opinions are based solely on his review of medical records.

[84] Dr. Turnbull also expressed in an opinion, in his report, that although Ms. Ruscheinski’s “soft tissue injuries have had ample time to heal”, her “symptoms may persist for some time.” He does not recommend any further treatment because, he explained, “passive treatments conducted more than two years after soft tissue injury are recognized as having little value.”

[85] I prefer the evidence of Drs. Feldman and Wasti over the defence expert, Dr. Turnbull. I accept Dr. Feldman’s opinion (supported by Dr. Wasti) that meeting a patient, obtaining their history directly, and conducting a thorough examination are essential to provide an accurate diagnosis of a patient’s injuries and to determine an appropriate prognosis.

[86] In my opinion, when dealing with cases where chronic pain is suggested or suspected, an examination of a patient that is designed to look for objective evidence of injury, such as muscle spasm, as opposed to feigned pain behaviour, coupled with an appropriate and thoughtful approach to taking a patient’s history, will lead to a diagnosis and prognosis that is much more reliable than a records review. I accept Dr. Feldman’s evidence that without a physical examination of Ms. Ruscheinski, it would not have been possible to detect the winging of her scapula.

[87] Dr. Turnbull agreed in cross-examination that muscle spasm and tenderness provide an objective basis for a diagnosis and prognosis. Those objective findings were found by Drs. Feldman and Wasti. Dr. Turnbull is not in a position to contradict the findings of Drs. Wasti and Feldman because he did not examine Ms. Ruscheinski. Further, Dr. Turnbull did not address Dr. Feldman’s findings, the findings from the flexion/extension x-rays, nor the focused treatment recommended by Dr. Feldman that consists of active and passive treatments. Finally, I wish to note that Dr. Turnbull acknowledged that most of his patients with neck and back pain do not have a history of being involved in motor vehicle accidents.

[88] My view of the matter is also supported by the remarks of Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 549, 73 B.C.L.R. (4th) 177, where he wrote at paras. 2-3:

[2]        The role of an expert is to assist the Court. I am not assisted by receiving the “opinion” from a psychiatrist who has not seen a person and who bases his opinion only on documentation made available to him where much of that documentation will ultimately not be in evidence. Ordinarily, counsel will provide the factual assumptions to the expert that counsel will then proceed to prove in evidence. Those factual assumptions should be clearly stated in the statement of the expert. It is not for an expert to merely review a number of documents, many of which will not be in evidence and make certain findings of fact. …

[3]        As well, the Court has commented a number of times on it being inadvisable to rely on the opinion of a medical advisor who has not seen a plaintiff: see for instance Parish v. Scott, [1966] B.C.J. (Q.L.) No. 2839 (B.C.S.C.) at paras. 5 and 29. …

ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.
In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”
In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.

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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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