Tag: Mr. Justice Willcock

Employer Paid Sick Leave Benefits Non-Deductible in ICBC Uninsured Motorist Claim

(Update December 3, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal)
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Last year the BC Supreme Court found that employer paid wage replacement benefits are non-deductible in ICBC hit and run claims.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this issue in the context of an uninsured ICBC Claim.
In this week’s case (Jordan v. Lowe) the Plaintiff was injured by an uninsured motorist.  He successfully sued for damages.  When seeking to collect damages from ICBC pursuant to section 20 of the Insurance (Vehicle) Act ICBC argued they could deduct from the judgement the amount of sick leave benefits the Plaintiff collected from his employer.  Mr. Justice Willcock dismissed this argument finding these benefits did not have an element of insurance to them thereby not making them deductible   The Court provided the following reasons:
[20]         ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition.  I agree that must necessarily be so.  ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance.  With respect to the able submissions of counsel, I cannot agree.
[21]         When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez.  The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”.  While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”.
[22]         There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section.  The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible.  It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it.
[23]         For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance.  They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 103 of the Regulation.  ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.

Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, demonstrating that having a Plaintiff’s claim dismissed for failing to discharge obligations under the BC Supreme Court Rules is a ‘draconian remedy‘ which will not lightly be granted in a personal injury action where liability is admitted.
In the recent case (Breberin v. Santos) the Plaintiff was injured in a 2007 collision.  Fault was admitted by the offending motorist.  In the course of the lawsuit the Plaintiff failed to provide “very basic information” to the Defendants, “refused to obey court rules” and had “been found in contempt of court“.
The Defendants applied to strike the Plaintiff’s claim.  Mr. Justice Willcock noted that, although this was a borderline case and a remedial costs order was appropriate to emphasise “the Court’s concern with respect to the conduct of the Plaintiff” outright dismissal of the claim was too harsh a result in the circumstances.  In dismissing the Defendant’s application the Court provided the following reasons:

[36] The Rules of Court are designed to permit parties to obtain full disclosure of relevant materials far in advance of trial so as to avoid unnecessary litigation, to make or seek admissions, and to settle claims that ought to be settled.  Despite numerous case planning conferences and previous orders in this case, the plaintiff at the most recent case planning conference appeared to appreciate for the first time that she is not entitled to hold medical information in her hands and to refuse to disclose it until she is satisfied with her diagnosis.  She appeared to understand for the first time that it is not open to her to produce only that portion of her medical file that corresponds with her own diagnosis or that which she prefers.

[37] It is difficult to determine whether the plaintiff’s suggestion at the most recent case planning conference that she only now appreciates the nature of her obligations is genuine.  On previous occasions when this Court directed Dr. Breberin to attend in Vancouver for an independent medical examination, gave explicit reasons for doing so, and noted that there was insufficient medical evidence to permit the Court to accede to her argument that she was unable to travel, Dr. Breberin later continued to question the Court’s jurisdiction to make such an order.  She continues to resist attempts to have her attend here for a medical examination. That resistance speaks of an unwillingness to accept the Court’s jurisdiction and authority.

[38] Having said that, I am of the view that dismissal of the claim would not be proportional to the nature of the ongoing default.  Dr. Breberin has now, finally, produced the authorizations for production of medical records and provided them to defence counsel.  She advised me during the course of submissions on May 22, 2012 that she was prepared to permit defence counsel to use the authorizations without attaching any conditions to their use.  She should be satisfied with the implied undertakings as to the confidentiality of evidence obtained on discovery. Defence counsel may now use those authorizations unimpeded by any undertaking or condition other than that implied by law.

[39] The Plaintiff is prepared to attend at a continuation of her examinations for discovery.  She should promptly make arrangements to attend at such an examination once the defendants have obtained the medical records they seek.

[40] She is right to say that there has been no previous order that she attend at an independent medical examination by an orthopedic surgeon.  Given the evidence she herself has filed with respect to the nature of her ongoing complaints, it is my view that it is appropriate for the defendants to seek that she be examined by an orthopedic surgeon, and there will be an order that she attend at an examination by an orthopedic surgeon in Vancouver, at a date to be selected by defence counsel.  If Dr. Breberin is unable to attend on the date selected by defence counsel, she should promptly notify defence counsel, and may apply, within seven days of receipt of the appointment, for an order adjourning the date of her examination to another date available to her.

[41] Once these measures are taken, the defendants will be in a position to more adequately assess the plaintiff’s claim.  The dismissal of an action where there has been an admission of liability, as in in this case, would be a particularly draconian remedy for the contempt that has delayed the defendants acquisition of evidence to which they are entitled. In my view, although this is a borderline case, such a measure would, now be disproportionate to the plaintiff’s conduct.

$50,000 Non-Pecuniary Assessment for Soft Tissue Injuries "Superimposed on Other Problems"

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In last week’s case (Sharifi v. Chaklader) the Plaintiff was involved in a 2008 collision in Vancouver BC.  She was a passenger in a van travelling through an intersection when it was struck by a left hand turning driver.  The Defendant was found fully liable for the crash.  The Plaintiff had some pre-existing problems and the collision superimposed soft tissue injuries on these.  These remained symptomatic at the time of trial.  Despite some concerns with the Plaintiff’s evidence the Court assessed non-pecuniary damages at $50,000.  In doing so Mr. Justice Willcock provided the following reasons:

[99]Weighing the evidence as a whole, I find that Ms. Sharifi suffered a musculoligamentous soft tissue injury to her cervical spine, upper back and shoulders on July 10, 2008.  Those injuries were superimposed on a pre-existent left shoulder injury and on some pre-existent neck pain.  Additional pain and suffering following the motor vehicle accident did not cause, but must have contributed to, the level of her ongoing stress and anxiety, and contributed to her tendency to suffer from migraine headaches.  The injury sustained in the motor vehicle accident has continued to trouble her since; it has affected her capacity to enjoy life, and caused her to suffer an income loss.

[100]On a balance of probability I cannot find Ms. Sharifi suffered a concussion or an injury to her low back.  Nor am I satisfied on the evidence that she has established she has suffered or is likely to suffer from post-traumatic degenerative osteoarthritis as a result of the soft tissue injury sustained in the July 2008 accident…

[103]Damages must be assessed on the basis that the plaintiff has suffered a soft tissue injury superimposed on the other problems documented in the records: a history of some neck pain, a left recurrent shoulder injury that limited her ability to lift, occasional migraine type headaches, stress, anxiety, fatigue and depression-like symptoms (but not clinical depression).  Damages must be assessed on the basis some continuing recovery is probable.  The functional impact of the injury is overstated by Ms. Sharifi.  She is capable of most activities of daily living. I am not satisfied she has established that she is disabled from clerical employment…

[119]I assess non-pecuniary damages in this case at $50,000.

ICBC Claims and Proper Objections to Examination For Discovery Questions

In one of the more in-depth judicial discussions of examinations for discovery in the context of a personal injury claims, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of proper objections at a Plaintiff’s examination.
In today’s case (Nwachukwu v. Ferreira) the Plaintiff was injured in a 2006 collision.  In the course of the lawsuit the Plaintiff attended three examinations for discovery.  The Plaintiff’s lawyer raised numerous objections during these and the discoveries were ultimately cut short.  The Defendant brought an application directing the Plaintiff to answer the questions which were objected to and further for permission to conduct a lengthier examination for discovery pursuant to Rule 7-2(2).
Mr. Justice Willcock granted the application finding there was “significant obstruction” at the previous discoveries.  In doing so the Court provided the following helpful comments about the scope of discovery and of common objections:

[32] The scope of examination for discovery has recently been canvassed by this court in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009 BCSC 587.  In those cases, the court reiterated the following principles:  the language of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of examination for discovery has remained unchanged and is very broad.  Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.  Useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose.  An examination for discovery is in the nature of cross-examination.  Counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[33] The time limit established by Rule 7-2(2) creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available.  A largely hands-off approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality.  Allowing wide-ranging cross-examination on examination for discovery is far more cost effective than a practice that encourages objections which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial rather than on examination for discovery.  Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.

Applicable Law

[34] Many of the specific objections in issue are addressed in an article by John Shields and Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010) at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35] Counsel objects to many questions on the grounds that they are not relevant.  In addressing these objections, I proceed from the proposition that counsel should have broad discretion to frame appropriate questions for the examination of the plaintiff, respecting the principles described in the cases to which I have referred.

(b) Confusion

[36] Counsel objects to many questions on the grounds that he finds them confusing.  In Cominco Ltd. v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of Appeal at para. 19 held:

If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It is for the witness, not counsel, to deal with that.  Difficulty in answering does not exclude a whole area. It excludes specific questions.  No area of fact is closed on the ground that to enter it would “open the floodgates”.

(c) Repetition

[37] Counsel objects to questions he considers repetitive.  As Shields and Shapray note, “asked and answered” is not an appropriate objection in Canada.  Madam Justice Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J. No. 1964 (S.C.), held at para. 9:

It is trite law that an examination for discovery is in the nature of a cross-examination.  While there will be situations in which repeating the same allowable question over and over on cross-examination may amount to intimidation, the Court must be slow to interfere where that tactic is used relatively sparingly and particularly in circumstances in which there are good grounds for the cross-examiner’s belief the witness may be falsifying his evidence.

(d) Inadequate Foundation

[38] Shields and Shapray say there is no requirement that a foundation be laid for a question.  In Cominco, the court noted at para. 632:

The objection is that no foundation was laid for the questions.  That suggestion does not appear to have been made at the time and I think that, if one objects, one should say why.  Presuming that this objection can now be made, I merely say that I know of no requirement that a foundation be laid.  None was cited to us.  Those questions should have been answered by the witness without interruption by counsel.

(e) Compound Questions

[39] Counsel routinely objected to questions that he considered to be compounded questions.  Shields and Shapray say, properly in my view, that objection to the form of question should be used sparingly.

(f) Privelege

[40] Counsel objected, at the most recent examination, when the plaintiff was asked what he alleges or says in relation to the claim.  The plaintiff cannot be asked what counsel told him about his claim or how the case will be framed at trial.  He may not be asked how much he will say he has lost, if the answer requires disclosure of an opinion obtained by the solicitor.  Question 1152 on the examination for discovery seems to seek such information.

[41] The witness cannot be asked to disclose how the facts having assembled, weighed or analysed by counsel.  That is what was offensive in the general requests considered by the court inTriathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions asked in that case were held to offend the description of the privilege afforded to the solicitor’s brief in Hodgkinson v. Simms(1988), 33 B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by asking what facts had been assembled by counsel or what facts would be relied upon, rather than by asking about specific facts, that was objectionable.  The manner in which facts have been marshalled is a question going to trial strategy.  It is for that reason that I expect that counsel have included in the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143, although no express reference was made to it in oral submissions.  In that case, questions were held to be objectionable because of what was being sought: conclusions reached by counsel, rather than the evidence of the witness.

[42] Questions that intrude upon privilege are generally objectionable.  That is expressly reflected in Rule 7-2(18).  Care should be taken to protect the solicitor/client relationship.

Formal Settlement Offers and Costs: A Matter of Discretion


As recently discussed, costs consequences following trial where a formal settlement offer is not beat is a matter of judicial discretion.  While the principles behind the exercise of that discretion are reasonably well formulated the costs results can be a little trickier to predict.  Two sets of reasons for judgement were released this week by the BC Supreme Court demonstrating this discretion in action.
In the first case (Khunkhun v. Titus) the Plaintiff advanced a personal injury claim in excess of one million dollars.  She claimed she suffered from “a significant and disabling vestibular injury” as a result of a collision.  The jury largely rejected the Plaintiff’s sought damages and awarded $45,000.
ICBC made a more generous settlement offer prior to trial which the Plaintiff did not accept (about 30% higher than the jury award).   As a result, Mr. Justice Willcock stripped the Plaintiff of her costs from the time of the offer onward.  The Court did not go so far as to order that the Plaintiff pay the Defendant costs finding that it would be unjust.  Mr. Justice Willcock repeated the following reasoning from Madam Justice Humphries in Lumanlan v. Sadler:
Given the significant injury to the plaintiff, which was caused by the defendant’s foolish and reckless behaviour, and the effect on the award of a further reduction for costs, even if not doubled, and taking into account all of the above considerations, in my view it would not be fair or just to require the plaintiff to pay ICBC’s costs after the date of the offer.
In the second case released this week (Mazur v. Lucas) the Plaintiff was awarded $538,400 following a jury trial to compensate her for injuries sustained in a collision.  ICBC appealed and succeeded in having a new trial ordered.
Prior to the second trial ICBC made a formal settlement offer of $300,000.  The Plaintiff rejected this and proceeded to trial again.   This time the jury came in lower awarding $84,000 in damages.
ICBC brought an application seeking costs for both trial.  The result of this would have been financially significant.    Madam Justice Humphries declined to allow this and instead awarded the Plaintiff costs for both trials despite not besting ICBC’s offer.  In exercising its discretion the Court provided the following reasons:
[62] This court has stated many times that parties should be encouraged to settle, and if unreasonable in not doing so, may be punished in costs.  As well, the fact that an award of costs against a party may wipe out their award of damages is not determinative.  However, given all the circumstances that existed at the time the offer was made which did not change throughout the trial, I am not persuaded that the plaintiff ought to be denied her costs on the basis that she ought reasonably to have accepted the offer that was made twelve days before the trial began.  Having in mind the amount of the first award, the narrow issue upon which a new trial was ordered, the amount of the second offer, and the expected similarity of the evidence at the second trial, the plaintiff was reasonable in deciding not to accept the offer and to have the action adjudicated by a second jury.
In addition to this final result, this case is worth reviewing for the Court’s discussion of advance payment orders.  Prior to the second trial ICBC paid the Plaintiff $250,000 in exchange for a stay of execution so the Plaintiff would not collect the damages from the Defendants personally.  Madam Justice Humphries found that an advance payment after judgement should not be factored into a costs assessment.  The Corut provided the following reasons:

[14] The defendants argue that the plaintiff should be deprived of her costs of the second trial as of December 24, 2009, the date on which the negotiated agreement was signed.  They cite cases dealing with situations in which awards at trial are less than an advance, and in which plaintiffs have been deprived of costs as of the date of the advance (McElroy v. Embelton (1996), 19 B.C.L.R. (3d) 1 (B.C.C.A.); Baxter v. Brown (1997), 28 B.C.L.R. (3d) 351 (B.C.C.A.).

[15] However, those cases are all advances before trial.  The basis on which the Court of Appeal in those cases concluded that the date of the advance was relevant to costs was because the plaintiff “had in hand more at the start of the action than the amount of the jury’s verdict.” (see McElroy).  The plaintiff, upon receipt of an advance, must realistically assess his or her claim knowing that proceeding to trial carries a risk in costs (Carey v. McLean, 1999 BCCA 222).

[16] This advance was one paid to avoid execution on an existing judgment, pending an appeal that would proceed regardless of whether the plaintiff wished to accept the money in final settlement of the action or not.  That option was not open to her.  The agreement signed by the plaintiff required repayment if a new trial were ordered and the results were not favourable to her, but did not give her the option of accepting the money and ending the proceedings.  This advance payment, unlike those in the cases cited by the defendant, is not the equivalent of an offer to settle.

[17] The date of the advance is not appropriately considered in these circumstances.

Scope of "Representations of Counsel" at Case Planning Conferences Discussed


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the scope of appropriate applications at Case Planning Conferences and further the prohibition of affidavit evidence in this venue.
In today’s case (Gill v. A&P Fruit Growers Ltd.) the Plaintiff was injured in a 2004 slip and fall incident.  The Defendant was found 70% at fault for this incident.
As the damages trial neared the Plaintiff brought an application to allow him to introduce evidence from two physicians by way pre-trial deposition.  The Defendant opposed arguing this order should not be made and further that such applications should not be heard at a Case Planning Conference.  Mr. Justice Willcock disagreed and provided the following feedback about the scope of CPC applications:

[17] There is still some uncertainty with respect to the scope of the prohibition against hearing applications supported by affidavit evidence on a case planning conference.  In order to effect the objectives of the Rules by making orders designed to resolve disputes efficiently and in a cost-effective manner on the merits, in my view, it will occasionally be necessary to rule on the manner in which evidence will be adduced at trial.  In some circumstances, even when such matters are hotly contested, they may be determined without affidavit evidence.  That may be the case where the issue may be determined on the basis of representations of counsel as officers of the court.

[18] It has long been the case that the courts have given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management.  In Nichols v. Gray (1978), 9 B.C.L.R. 5 (C.A.), the Court of Appeal reaffirmed a chambers judge’s discretion to give weight to statements of counsel relating to the evidence and the conduct of trial.  It is in that context that the new Supreme Court Rules were enacted.  The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.

[19] I adopt as applicable to case planning conferences the views expressed by N. Smith J. in Jurczak v. Mauro, 2011 BCSC 512, and by Gray J. in Enns v. Cahan, 2011 BCSC 54, in addressing the similar provision in the trial management rule prohibiting the granting of orders requiring affidavit evidence: that it is for the trial management judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[20] In the case at bar, as in Jurczak, the evidence in the affidavits that were before me added nothing to the submissions of counsel and counsel’s advice to the court with respect to matters that ought to be canvassed at a case management conference, specifically the witnesses availability for trial and the importance of cross-examination of those witnesses to the defence case.  The affidavit evidence that I would have to weigh on the application was like that described in para. 14 of the judgment in Jurczak:

[14]      All of that relates to matters of evidence that counsel expected or wanted to put before the trial judge, the availability of that evidence, and the readiness of the defendant to proceed to trial.  Those are matters of which counsel are expected to advise the court at the TMC and the court is, of course, entitled to assume counsel’s statements are true.  Affidavits in which their legal assistants simply say the same thing about these procedural matters are of no further assistance.

[21] The enumeration of orders that may be made at a case planning conference is exhaustive but Rule 5-3(1)(k) confers a broad discretion on the case planning judge to make orders respecting expert witnesses and Rule 5-3(1)(v) confers a broad discretion to make any order that advances the objectives of the Rules.  The judicial exercise of these discretionary powers requires that some consideration be given to the nature of the orders more specifically enumerated in Rule 5-3.  The Rules contemplate active judicial management of litigation and, in particular, judicial regulation of the role of expert witnesses at trial.  The Rules require that case planning and trial management be conducted with an eye to efficiency and the proportionality of the expense of the process to the value, importance and complexity of the matters in issue.  In my view, an application for an order that expert witnesses be deposed before trial rather than testifying by a video conference at trial is clearly an order of the type that may be made at a case planning or trial management conference, if the factual matrix necessary for making such an order can be established.  Such an order is in the nature of the procedural orders enumerated in Rule 5-3.

$210,000 Non-Pecuniary Damage Assessment for Frontal Lobe and Brachial Plexus Injuries

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for severe injuries following a motor vehicle collision.
In last week’s case (Harrington v. Sangha) the Plaintiff was struck by a tractor trailer in 2007.  Another motorist who initially lost control causing the tractor-trailer to collide with the Plaintiff was found fully liable for the incident.   The Plaintiff suffered a frontal lobe brain injury in addition to a brachial plexus injury.

(Frontal Lobe Graphic via Wikipedia)
The Plaintiff was disabled from employment as a result of the pain from the brachial plexus injury and the cognitive changes due to the frontal lobe injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $210,000 Mr. Justice Willcock provided the following reasons:




[183] There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

[184] Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

[185] It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

[186] On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.




Pharmacare Benefits Non-Deductible From Cost of Future Care Award


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s award for cost of future care in a personal injury claim should be reduced by the availability of Pharmacare benefits.  In short the Court held that these benefits are non-deductible.
In yesterday’s case (Harrington v. Sangha) the Plaintiff suffered severe and disabling injuries following a collision with a tractor-trailer.   Her injuries resulted in future care costs of $488,495 including medication costs of $118,000.  The Defendant argued that this portion of the award should be reduced because British Columbia’s Pharmacare program may cover some of the expenses.  Mr. Justice Willcock rejected this argument and in doing so provided the following useful reasons:




[158] The short answer to that argument is that where the benefit in question is not available to individuals, because they have a remedy against a tortfeasor, where there is a provision in the plan for subrogation, or where there is an obligation on the recipient of the benefit to repay the benefit from the proceeds of litigation, an award will not result in double recovery. The availability of benefits paid on such terms should not reduce the award.

[159] As this court noted in MacEachern v. Rennie, 2010 BCSC 625 at para. 422:

Medication costs required as a result of a motor vehicle accident must be paid for by a motor vehicle insurer, and in such a case, PharmaCare is the insurer of last resort.

[160] It was the evidence of Mr. Moneo that the PharmaCare programme is not intended to be available to persons who have a tort claim for the cost of their medications. Counsel seeking to have the deduction made from the award was reduced to arguing that there will be double recovery if the plaintiff recovers an award for the cost of her medications and conceals the award from PharmaCare or if she squanders her award and again becomes dependent on the state to pay for her drug expenses.

[161] The award in this case is made in the expectation that Ms. Harrington will report the outcome and use the award as intended. The judgment cannot be founded upon the presumption that the plaintiff will make a fraudulent PharmaCare claim. In any event, PharmaCare will be aware of this judgment, having made submissions and having been given standing to address the issue.

[162] There is no real risk of double recovery in this case and no basis for an award other than that which is necessary to ensure the plaintiff will be in a position, without relying upon the state, to pay the cost of the drugs she requires.




More on Court Ordered Medical Exams and Travel


Further to my previous posts on this topic (which you can find here and here) further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, addressing defence medical exams and the issue of travel.
In today’s case (Breberin v. Santos) the Plaintiff was injured in a motor vehicle accident.  The Defendants wished to send her for a medical exam.  The Plaintiff lived in Edmonton and argued that the exam should take place there.  The Defendants applied for a Court order to compel an exam in Vancouver.  In opposing the application the Plaintiff produced evidence from her doctor stating that “she is unable to travel….at the present time or in the forseeable future“.
Mr. Justice Willcock was not satisfied with this medical evidence and ordered that the exam take place with the Defendant’s chosen expert in Vancouver.  In doing so the Court provided the following reasons:




[5] The argument made by the parties is, first, for the defendants, that the defendants are entitled pursuant to Rule 7-6 to obtain an order requiring the plaintiff to attend at a medical examination and that the test to be addressed by the court in determining where and when the examination should take place is fully and accurately described by Master Bouck in the decision of Parsons v. Mears, 2011 BCSC 397.  In that case, the court says that the following principles are applicable to the question whether a plaintiff should be examined within British Columbia:

a.         The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant …

b.         Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person …

c.         Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: …

d.         It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee …

[12] In my view, the logic of Master Bouck set out in the Parsons case is applicable both in relation to independent medical examinations within and outside British Columbia.  I am of the view that the plaintiff’s convenience should be considered in determining where the independent medical examination should take place.  I am also of the view, however, that the onus should fall upon the plaintiff to show that there is a reason to depart from the general rule that the defendants are entitled to choose the expert who should conduct the independent medical examination on their behalf.  Here, the plaintiff should be required to show some justification for requiring that the independent medical examination should take place in Edmonton.

[13] As I noted when I referred to the affidavit filed by the plaintiff in response to the application, there is very little evidence with respect to the nature of the medical problem that will prevent the plaintiff from attending at an independent medical examination.  The independent medical examination is scheduled in the relatively distant future, on July 8, 2011.  There is, in my view, sufficient time for the plaintiff to prepare and make careful arrangements to attend at that examination in July.  This is not a case where the independent examination is set late in the day or in circumstances that prevent the plaintiff from making appropriate arrangements so as to make it convenient for her to attend.

[14] I am not satisfied on the evidence that the plaintiff has established that there is any reason that justifies an order that she should be examined in Edmonton as opposed to Vancouver.  There is, on the other hand, considerable advantage to the parties in having the independent medical examination being conducted in Vancouver in that the expert will be available to attend at trial if required to do so and readily available for cross-examination.  Because the case is set for trial in Vancouver, I am of the view that it is in the interests of justice in this case to order that the independent medical examination take place here.  I am not satisfied on the evidence there is any reason to depart from the Rule that the defendant should be entitled to choose an appropriate expert to conduct the examination so as to put the parties on an equal footing.




$90,000 Non-Pecuniary Damages For Aggravation of Psychiatric Illness


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $240,000 in total damages as a result of injuries and loss sustained in a BC motor vehicle collision.
In last week’s case the Plaintiff was involved in a 2006 collision.  She was not at fault for the crash.  She sustained physical injuries which included a disk protrusion in her neck.  She also suffered from a pre-existing psychiatric illness (bipolar disorder) which was significantly aggravated as a result of her crash.  The Court assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000.  In doing so Mr. Justice Willcock provided the following reasons:

[126] I accept the evidence of  (the Plaintiff’s) treating physicians that she sustained injury to the musculoligamentous structures of her right neck and shoulder area and that she now suffers from a disk protrusion at the C5-C6 level that may become increasingly symptomatic. Dr. Sahjpaul, the witness most qualified to address the cause and effect of the disc protrusion believes the MRI suggests some cord compression but is not convinced that the plaintiff’s symptoms are entirely, or even significantly a result of that cord compression. I accept his conclusion that the plaintiff has neck pain and right shoulder and arm pain and weakness which is a combination of a soft tissue injury and some irritation of the nerve root at the C5-6 level. I further accept his conclusion that the motor vehicle accident was causative of the plaintiff’s symptoms.

[127] I find that since the accident she has suffered mechanical neck, shoulder, mid-back, and low back pain, weakness, and tenderness. Despite that pain and weakness, she has demonstrated on examination by her physicians that she has relatively normal range of motion. Only minimal back muscle wasting has been noted.

[128] (the Plaintiff) perceives that her persistent back pain limits her ability to engage in tasks that require prolonged static or awkward positioning, including twisting, reaching, or stooping. It is noted, however, that (the Plaintiff) has difficulty with self-assessment and is prone to overestimate the extent of her disability.

[129] I accept the opinion of Dr. Adrian that (the Plaintiff) will probably continue to experience difficulty performing activities that place physical forces on the structures involving her neck and back, but find that (the Plaintiff) is limited as much by psychological as by physical symptoms. While her pain has been chronic there is some indication that with therapy the psychological component of her symptoms is at least temporarily improving.

[130] I accept the evidence of Dr. Adrian and Dr. Sahjpaul that there is a risk that the C5-6 disc will cause increasing pain over time. (The Plaintiff) may require surgical intervention as a result of the obvious and problematic C5-6 herniation seen on the MRI…

[145] The accident in this case has had a significant effect on (the Plaintiff’s) life. I am satisfied on the evidence that she suffered from a significant bipolar affective disorder that required monitoring and medication prior to the motor vehicle accident but that that disorder was significantly exacerbated to the point that she became significantly disabled by her illness from 2006 to 2009. While she is under reasonable control at the moment, her significant depressive and manic episodes have made her more prone to relapse. In addition, she has a physical injury that continues to trouble her and a disk protrusion that may become more symptomatic in the future. Taking into account the likelihood that she would to some extent have suffered from increasing symptoms of bipolar disorder, I am of the view that non-pecuniary damages should be set at $90,000.

In addition to the above, the decision is worth reviewing in full for the Court’s comments about the expert psychiatrist retained by the Defendant.  The Defendants argued that any worsening of the Plaintiff’s bipolar disorder was not a result of the collision, rather it could be better explained by “chronic family stresses, non-compliance with treatment, and pregnancy“.   In support of this argument the Defendant’s relied on Dr. Solomons, a psychiatrist retained by the Defence.  Mr. Justice Willcock rejected this argument and in doing so provided the following criticism of Dr. Solomons opinions:

Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident. He erroneously concluded that (the Plaintiff) had not described the traumatic effect of the accident and its emotional consequences to her physicians, or sought psychiatric help. In cross-examination Dr. Solomons acknowledged deficiencies in his review of the records and misunderstanding of (the Plaintiff’s) history and treatment. While he expressly describes pregnancy as a factor contributing to the increase in symptoms of bipolar illness he does not consider the fact that (the Plaintiff’s) one specific worry during the pregnancy was the possibility of a miscarriage or birth defect due to the motor vehicle accident… I reject most of Dr. Solomons’ opinion

Just last month the BC Supreme court criticized another psychiatrist retained by defence counsel in injury litigation.  Since medico-legal experts generally enjoy immunity from lawsuits if they are careless in expressing their opinions, judicial criticism is a welcome development which can help keep privately retained expert witnesses in-line.

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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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