Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, illustrating circumstances when increased “scale c” costs are appropriate.
In the recent case (Wallman v. Doe) the Plaintiff suffered a disabling brain injury following a motor vehicle collision and was awarded damages following a lengthy trial. The Plaintiff was awarded costs on Scale C and in finding this increased scale was appropriate Mr. Justice Weatherill provided the following reasons:
6] By any measure, this was a complex case that, although courteously and cooperatively fought, was nevertheless hard fought with little, if anything, conceded. The defendants’ position throughout was that the plaintiff’s alleged brain injury was not real. The trial occupied 29 days. Forty‑three witnesses were called by the parties, including 16 engineering and medical experts. Sixteen expert reports were exchanged.
 The engineering experts provided opinions regarding the biomechanics of and the acceleration and other forces imparted upon a human body during a rear‑end collision, mechanical engineering, accident reconstruction, and Monte Carlo simulations to predict the probability of various accident scenarios.
 The medical expert evidence included opinions of psychiatrists, psychologists, neurologists, a neuro‑opthalmologist, physiatrist and a speech pathologist.
 In addition, there was expert evidence from occupational therapists, rehabilitation and vocational consultants, and economists.
 The defendants conducted several pre‑trial examinations of nine witnesses, conducted two and a half days of examinations for discovery of the plaintiff, during which he was asked 2,669 questions. Considerable steps were taken by the parties in an effort to prove or disprove the plaintiff’s claim that he had suffered a mild traumatic brain injury during the accident. Most, if not all, of the expert evidence was focused on whether the plaintiff sustained a mild traumatic brain injury as a result of a relatively minor rear‑end impact during the accident.
 In addition, there were several pre‑trial applications, most of which were of ordinary difficulty, but one involved the plaintiff’s successful motion to strike the defendants’ jury notice on the basis that the case had become complex and would be too lengthy for a jury to retain the evidence. This application was the subject of two hearings in the Court of Appeal.
 In my view, this action was plainly one of more‑than‑ordinary difficulty. The plaintiff is entitled to an award of costs at Scale C.
Tag: Mr. Justice Weatherill
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, illustrating circumstances when increased “scale c” costs are appropriate.
When an injury claim proceeds to trial the case becomes one of public record. The public nature of the proceedings can lead to unintended consequences such as creating a papertrail for Revenue Canada to go after undeclared past earnings.
Another unintended consequence of the open trial process was highlighted in reasons for judgement released this month by the BC Supreme Court, New Westminster Registry. In the recent case the Plaintiff was injured in a 2007 collision. He missed some time from work initially but returned to work in 2008 and had “been performing the work duties assigned to him” since that time. The Plaintiff sought damages for diminished earning capacity and in support of this claim tendered medical evidence speaking to his physical limitations. When his employer learned of this the Plaintiff was suspended (in this case temporarily) from his employment. The reasons for judgement highlight this consequence as follows:
 The evidence at trial was clear that the plaintiff has been performing the work duties assigned to him since his return to work in 2008. However, on the first business day following completion of the trial, the plaintiff was suspended from his duties, without pay, apparently because the City of New Westminster had concerns about the plaintiff’s fitness for duty as a firefighter on the basis of its understanding of the evidence the plaintiff led at trial. By letter dated June 24, 2013, Chief Armstrong informed the plaintiff as follows:
At the trial and in speaking to legal counsel for yourself and ICBC I learned several things that caused me concern. First, apparently considerable medical evidence has been tendered at the trial as evidence of your inability to perform the full range of duties required by your position. Second, you are apparently seeking the recovery of considerable damages as a result of the accident and prior to being subpoenaed, we were not aware that these proceedings had been instituted by you.
…This is to advise that you are being held out of service without pay until you are able to prove to us that you are in fact fit for duty. We are formally requesting you provide copies of all medical evidence tendered as exhibits at your trial so that we may assess your fitness for duty as expeditiously as possible.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, making an interesting award with respect to past wage loss covered by a sick leave plan.
In this week’s case (Bulpitt v. Muirhead) the Plaintiff, a firefighter, was injured in a 2007 collision. He did not suffer an actual wage loss as “he received all of the wages he would otherwise have received had the accident not occurred as sick leave benefits to which he was entitled as an employee of the City of New Westminster“. These benefits were subject to a subrogation agreement which was put into evidence. The court expressed concern about whether this was a sufficient basis to make an award for past loss of wages. Instead, the court did not award money for past wage loss but used its inherent jurisdiction to make a blanket order that the Defendant provide full indemnity to the plaintiff in respect of any amount of the judgement that the plaintiff is, or becomes, obligated to re-pay the City. In reaching this decision Mr. Justice Weatherill provided the following reasons:
 The only evidence proffered by the plaintiff during the trial in respect of a claim for past wage loss came in the form of a letter dated June 6, 2008 from a payroll clerk with the City of New Westminster to ICBC. It states:
“Please find enclosed the completed Certificate of Earnings form for [the plaintiff]. I am also attaching a copy of the subrogation agreement from the Collective Agreement for The City Firefighters’ Union, Local 256.
The gross pay lost up to May 30, 2008 due to [the Accident] is $20,365.56. Please be aware that his sick claim is still ongoing so this figure is not a final amount.
When a settlement has been reached, please forward to my attention the total amount of earnings lost due to this accident, plus any interest attributed to those earnings, payable to the City of New Westminster. This will allow us to credit Mr. Bulpitt’s sick plan and return any gratuity hours that he lost due to the accident.
 The attached “subrogation agreement” states:
Sick Leave Recovery
a) An employee may use sick leave credits for time lost through accidental injuries PROVIDED THAT prior to making a claim or commencing an action for damages against a third party in respect of such injuries, he shall notify the Employer of such claim and enable the Employer the opportunity to be represented in all proceedings or settlement discussions relating to the claim. Any such claim shall include a claim for loss of wages including pre- and post- judgement interest, and to the extent that recovery is made, such amount will be reimbursed to the Employer. The Employer will reimburse the employee, fifty percent (50%) of the cost of the legal fees certified by the employee’s legal counsel as being attributed to providing the wage/benefit loss claim.
 During argument at trial, I expressed to plaintiff’s counsel my concern that this evidence was insufficient to prove the employer’s right to make a subrogated claim for the wage benefits it had paid to the plaintiff while he was unable to work due to his Accident-related injuries…
 Regardless, it is my view that the June 6, 2008 letter and the excerpted portion of the Collective Agreement is evidence that the plaintiff’s sick leave benefits were not as they would have been but for the Accident. Clearly, there was a benefit plan that had been negotiated by the City and the firefighters’ union the terms of which were contained in the Collective Agreement. Further, this letter is evidence of what it will take to restore the plaintiff’s sick leave plan to its pre-Accident status.
 In all cases, the court retains residual power to grant appropriate relief through its inherent jurisdiction: Anderson v. Buydens,  B.C.J. No. 2675 at para.16 (S.C.). In this case, a miscarriage of justice would result if the plaintiff was awarded nothing for past wage loss because he received benefits from his employer yet the employer was able to “claw back” those same benefits by way of a right of subrogation. I am satisfied that there ought to be a provisional award for past wage loss in this case. The plaintiff is entitled to full indemnity from the defendants in respect of any amount to which the plaintiff is or becomes obligated to re-pay to the City of New Westminster in respect of benefits he received as a result of the Accident.
Adding to this site’s archived case summaries addressing fault for motor vehicle collisions, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing liability for a collision which occurred when a motorist attempted to pass a left hand turning vehicle.
In last week’s case (Ekman v. Cook) the Plaintiff was operating a motorcycle. The traffic ahead of him slowed to a near stop and he moved into the oncoming lane to pass the vehicles. At the same time the Defendant commenced a left hand turn into her driveway. Both motorists were found at fault with the Plaintiff shouldering 75% of the blame. In reaching this decision Mr. Justice Weatherill provided the following reasons:
 Ms. Cook knew she was driving slowly towing a horse trailer along a straight roadway where passing was permitted. She ought reasonably to have been alive to the possibility of a passing vehicle. She should have looked in her side mirror and done a shoulder check in a manner timely to the commencement of her left turn. If it is true that Ms. Henry noticed weaving motorcycles and was concerned they were going to try to pass, so too should Ms. Cook have.
 Each of the plaintiff and Ms. Cook were obliged to ensure that their respective manoeuvre could be performed safely. I find on the balance of probabilities that both the plaintiff and Ms. Cook failed to exercise the appropriate standard of care expected of them in the circumstances and was negligent and that their respective negligence caused the accident. Each is partly liable for the accident.
 I also find that, of the two of them, the plaintiff had the better opportunity to assess the circumstances and avoid the collision. It should have been evident to him that the traffic ahead of him had slowed almost to a stop for a reason, including the possibility that a vehicle ahead of him was preparing to turn left. The Truck/Trailer’s left turn signal should have been evident to him. It is incumbent upon drivers who are uncertain as to what is going on ahead of them on a highway to proceed with caution when attempting to pass. The plaintiff did not do so.
 In my view, the appropriate apportionment of liability is 75% to the plaintiff and 25% to Ms. Cook. The defendant William Joseph Cook is vicariously liable for Ms. Cook’s negligence by virtue of s. 86 of theMotor Vehicle Act.
Reasons for judgement were released this week demonstrating that not only is an at-fault motorist responsible for the injuries they cause but also for any complications that result in the course of the Plaintiff’s reasonable treatment of these.
In this week’s case (Cebula v. Smith) the Plaintiff was involved in a head on collision. Despite denying fault the Court found there was “overwhelming and uncontradicted” evidence that the Defendant was to blame. The crash caused multiple injuries including a fractured neck which required the removal of two discs and a fusion from C5-C7. Following this surgery the Plaintiff experienced a bone infection in her hip and further experienced long term difficulty swallowing as a complication of the surgery. In finding the Defendant at fault for all of these consequences and assessing non-pecuniary damages at $150,000 Mr. Justice Weatherill provided the following reasons:
 On the basis of the evidence before me, I find that the plaintiff has established that the injuries she sustained to her neck, shoulders and upper back, right knee and right ankle, as well as her PTSD, sleep disturbances and anxiety were caused by the Accident. I also find that the plaintiff’s swallowing difficulties, dizziness and voice problems were the result of her neck surgery that was itself necessitated by the Accident. The infection in her hip at the site of her bone graft was also the result of her neck surgery. Her headaches have been aggravated by the Accident. It is more probable than not that these injuries and other conditions would not have occurred but for the Accident….
 As a result of the Accident, the plaintiff’s life changed permanently and dramatically. The various surgeries she underwent, the chronic pain and headaches, the long period of only partial recovery, the limitations on her mobility and her inability to continue in her teaching position has had a significant effect on both her physical and psychological wellbeing. She has withdrawn from her social network and previous social activities. She is short-tempered and not as much fun to be around. Driving has become stressful and anxious for her. It is worse when she is a passenger. The dizziness and choking that began after her November 2007 neck surgery continue to this day. She is unable to take care of her home and garden except for minor housekeeping tasks.
 The plaintiff has become anxious and has lost confidence in her ability to be an effective teacher. Teaching is no longer the joy that it was for her prior to the Accident. Although psychological treatment and other encouragement enabled her to gradually return to work, she is only able to teach in the classroom one day per week. That one day takes a toll on her such that she requires the remainder of the week to recuperate and prepare for the next work day.
 The plaintiff was in obvious pain and discomfort while she was testifying. It is clear to me that the Accident has caused her significant stress and anxiety and significantly affected her ability to function and cope with daily life, a marked change from her life prior to the Accident…
Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway. The Plaintiff had no recall of how the collision occurred. The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence. Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred. In so concluding the Court provided the following reasons:
 Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability. See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident. In such cases, the plaintiff bears the burden of proof. The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized: see paras. 23-24.
 However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident. The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane. The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction. While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived. The only reasonable inference to draw is that the defendant was driving while drunk.
 I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant. The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway. There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash. The Plaintiff, the sole survivor, had no recall of what occurred. The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
 The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash. The posted speed limit was 110 kph. The vehicle was travelling in excess of 130 kph at the time of the accident. As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness. I accept this evidence. Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention.
 In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8. The defendants led no evidence to the contrary.
Adding to this site’s soft tissue injury damage archives, reasons for judgement were released earlier this year by the BC Supreme Court, New Westminster Registry, addressing damages for chronic moderate soft tissue injuries imposed on a pre-existing condition.
In the recent case (Graydon v. Harris) the 65 year old plaintiff was injured when his vehicle was struck by a large industrial garbage truck. The Defendant was found fully at fault for the collision. The Plaintiff suffered from pre-existing neck pain and headaches due to a degenerating spine. The Collision resulted in soft tissue injuries which aggravated these issues. In assessing non-pecuniary damages at $60,000 Mr. Justice Weatherill provided the following reasons:
 Based upon the evidence before me, I find that the plaintiff is a very stoic and hardworking man who has suffered a moderate soft tissue injury to his neck, lower back and shoulders as a result of the October 25, 2007 accident. I also find that, at the time of the October 25, 2007 accident, the plaintiff was suffering from pre-existing neck pain, headaches and a degenerative condition of the cervical spine. That is why Dr. Koelink was continuing to prescribe Tylenol 3 for him. The soft tissue injuries suffered during the October 25, 2007 accident exacerbated his pre-existing condition.
 Despite some inconsistencies in his evidence, I find that the plaintiff’s injuries have had and will have a lasting effect on his work life and, to a lesser degree, on his home and recreational life. He continues to be able to work but not without pain and discomfort. He continues to have headaches which flare up when he is welding.
 He is able to travel both for vacation and work without adverse effects with the exception of occasional numbness in his left leg after sitting for prolonged periods of time. However, as Dr. Craig testified, that discomfort can be eased by changing position.
 The plaintiff was suffering from pain, headaches and a degenerative condition of the cervical spine well before the October 25, 2007 accident. In my view, there is at least a 25% chance that the plaintiff’s pre-existing condition would have interfered with his work and other activities had the October 25, 2007 accident not occurred.
 After considering all of the plaintiff’s circumstances, the principles set out in Stapley and the cases provided by counsel, and after applying a 25% contingency in respect of the plaintiff’s pre-existing condition, I find that an award of $60,000 for non-pecuniary damages is appropriate.
It is well established that a litigant in a BC injury claim is entitled to court ordered interest on successful special damages claims. What about special damages that are owing but have have not yet been paid? Is interest recoverable on these? Reasons for judgement were released last week addressing this topic and the answer is yes.
In last week’s case (Thibeault v. MacGregor) Mr. Justice Weatherill provided the following analysis:
 I agree with Mr. Walton that the plaintiff is entitled to interest pursuant to the Court Order Interest Act (COIA) on the special damages I have awarded, even though the charges for physiotherapy have not yet been paid. The relevant section of the COIA provides:
(1) Subject to section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.
(2) Despite subsection (1), if the order consists in whole or part of special damages, the interest on those damages must be calculated from the end of each 6 month period in which the special damages were incurred to the date of the order on the total of the special damages incurred
(a) in the 6 month period immediately following the date on which the cause of action arose, and
(b) in any subsequent 6 month period.
 Black’s Law Dictionary, 9th ed. defines “incur” as “[to] suffer or bring on oneself (a liability or expense)”. The plaintiff became liable for the cost of her physiotherapy payments when she either attended or missed her appointments.
It seems there has been a lot of judicial scrutiny as of late of expert witnesses crossing the line into client advocacy. Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, providing the latest example of this.
In last week’s case (Thibeault v. MacGregor) the Plaintiff was injured in a 2010 collision. It was a so-called ‘low velocity impact’ but the Court rejected this defence and found the Plaintiff did sustain a moderate whiplash injury. Non-pecuniary damage were assessed at $35,000. In the course of the lawsuit the Defendant arranged for an independent medical exam of the Plaintiff. This physician provided opinion evidence which the Court largely rejected. In doing so Mr. Justice Weatherill provided the following criticism:
 Counsel provided detailed written submissions on the issue of the Vondette Report’s admissibility. I agree generally with the submissions of plaintiff’s counsel. Dr. Vondette’s report is prolix in the extreme. Dr. Vondette’s review of the plaintiff’s background was beyond thorough and comprehensive – it reported the minutia of the plaintiff’s social, family, psychological and medical history. He opines on matters that have no relevance to the plaintiff’s claim in this proceeding: He overreaches into the areas reserved for the trier of fact. He makes remarks that go solely to the plaintiff’s credibility. His report in many places is argument in the guise of opinion. Much of the report purports to be opinion when what is written is not an opinion at all but rather a regurgitation of the plaintiff’s complaints. ..
97] After hearing counsel’s submissions, I concluded that Dr. Vondette was probably an expert whose opinions, properly articulated, could be of benefit to the Court. Although I found the vast majority of the Vondette Report to be inadmissible, I decided that it was in the interest of justice to grant leave allowing Dr. Vondette, with counsel’s assistance, to produce a summary of those portions of the Vondette Report that are properly admissible.
 Dr. Vondette did so. His summary (“Summary”) is two pages in length and captures succinctly and helpfully the opinions he was attempting to express in his report. The Summary, together with counsel’s letter of instruction and appendices “A” and “E” from the Vondette Report were collectively marked as Exhibit 7.
 Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was the Summary. He returned to the prolix method of communicating that he suffered from when writing his report. He sought to justify this communication method on the basis that “I am a competent and thorough physician” and that any review of the plaintiff’s circumstances that was less than comprehensive and itemized is “rubbish”.
 Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it. In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy. He testified that his expertise is such that he tells physiotherapists “exactly what I want done”…
 Dr. Vondette was argumentative and condescending throughout his cross-examination. Virtually all of his answers were lengthy monologues. He was critical of Dr. MacKean’s March 5, 2012 report because it was only two pages in length. He was critical of her December 5, 2012 report because, in forming her opinion, she reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two July 2012 reports.
 Dr. Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor for more than 20 years, knew more about the plaintiff and what was best medically for her than he did after a three hour consultation. In Dr. Vondette’s words: “I think I can reasonably size up what’s going on here”.
 Finally, Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore theories followed by a bunch of over-excited disciples”. In his view, the plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a physiotherapist who is more orthodox and who performs scientifically validated forms of treatment.
 Needless to say, the approach to the role of an expert witness in the context of court proceedings that Dr. Vondette followed is unhelpful, counterproductive and is to be discouraged. It is not within the purview of an expert witness to determine facts or issues of credibility and reliability: Brough v. Richmond, 2003 BCSC 512 at paras. 14 – 17. Unfortunately, Dr. Vondette allowed his subjective views of the plaintiff formed from his review of her medical and personal history to overwhelm whatever impartiality he may initially have had. I have been unable to take meaningful guidance from his opinions and testimony. To the extent that his opinions conflict with those of Drs. Salmaniw, MacKean and Reeves, I accept the opinions of the latter experts and reject those of Dr. Vondette.
Adding to this site’s archived soft tissue injury caselaw assessments, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic soft tissue injury with an ultimately good prognosis.
In the recent case (Chingcuangco v. Herback) the Plaintiff was involved in a 2008 collision for which she was not at fault. She suffered soft tissue injuries to her neck and back which continued to pose problems at the time of trial. Despite their long duration the prognosis for full symptom recovery was good with the Court finding they would resolve within a further 5 years. In assessing non-pecuniary damages at $45,000 Mr. Justice Weatherill provided the following reasons:
 The plaintiff felt some immediate pain in her chest and right toe after the accident. She had no loss of consciousness. X-rays taken at the hospital shortly after the accident were negative. As the days and weeks progressed, she developed debilitating pain in her neck and lower back, with resulting headaches. She had bruising on her chest and abdomen. She was unable to go to work at CRA for two weeks.
 The bruises and the pain she suffered in her chest and right toe pain resolved completely within six weeks. Although she thought her lower back pain had resolved by the end of 2009, she has since experienced severe flare-ups several times since then.
 The plaintiff has tried various modalities of treatment. They have provided temporary but not permanent relief. The plaintiff continues to experience persistent pain and muscle spasms. She will continue to have episodic flare-ups of pain in her lower back and cervical spine with associated headaches. I am satisfied that such episodes have been and will continue to be the result of the injuries she suffered during the September 15, 2008 accident…
 I find that the plaintiff suffered a Grade II whiplash injury as a result of the September 15, 2008 accident. She also suffered contusion injuries to her chest and lower abdomen, chest wall strain and a chipped tooth. Over four years have passed since the accident and she still suffers from intermittent neck and lower back pain and tension headaches as a result of the accident.
 I find that it is reasonable to expect the plaintiff will be fully recovered within five years. In part, I make this finding on the basis that the plaintiff is an achiever. Dr. Mergens gave evidence that she might still suffer some muscle tension headaches for an indefinite period. He did say these symptoms may dissipate with time and conditioning. However, there is no reasonable prospect of permanent impact upon her capabilities.
 After considering all of the evidence, the submissions of counsel and the case authorities, I find that an appropriate award for non-pecuniary damages in this case is $45,000.