Tag: Mr. Justice Wilson

Expert Report Excluded For "Advocacy" and Other Short-Comings

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, excluding an expert report from evidence for multiple short-comings.  The Court’s criticism included the fact that the report failed to properly set out the expert’s qualifications, offended the ‘ultimate issue‘ rule, failed to list documents relied on in forming the expert’s opinion and lastly for being ‘advocacy‘ in the guise of opinion.
In this week’s case (Turpin v. Manufacturers Life Insurance Company) the Plaintiff purchased travel insurance with the Defendant.  While on a trip to California she fell ill and required medical treatment.  Her expenses quickly grew and exceeded $27,000.  The Defendant refused to pay relying on a pre-existing condition exclusion in the policy.  The Plaintiff sued and succeeded.
In the course of the trial the Defendant tried to introduced a report from a doctor of internal medicine to “provide an opinion as to whether (the Plaintiff’s) medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance Policy“.
Mr. Justice Wilson ruled that the report was inadmissible for multiple reasons.  The case is worth reviewing for the Court’s full discussion of the shortcomings of the report.  In my continued effort to highlight expert reports being rejected for ‘advocacy’ I reproduce Mr. Justice Wilson’s comments on the frowned upon practice of experts using bold font to highlight portions of their opinion:

[29] Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.

[30] This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.

[31] In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:

He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.

I adopt those comments as applicable in this case.

[32] This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.

[33] If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.

[34] It was for those foregoing reasons that I ruled the report inadmissible.

The High Risk of Personal Injury Trials: The Costs and Disbursements Swing


As previously discussed, personal injury trials can be risky and expensive.  The British Columbia Supreme Court has a so-called ‘loser pays’ system which generally makes the losing side pay the winning side’s costs and disbursements (the hard expenses associated with running a trial such as court filing and expert witness fees).  Last month the BC Supreme Court, Victoria Registry, released reasons for judgement demonstrating this reality.
In this recent case (Sartori v. Gates) the Plaintiff was injured in 2005 when a truck owned by his friend accidentally struck him.  The Plaintiff sued for damages.  As the lawsuit progressed ICBC made a formal settlement offer of $230,000 plus costs and disbursements.
The Plaintiff presented his own formal offer of $600,000 plus costs and disbursements.   These offers were rejected and the claim proceeded to trial.  Ultimately a jury found the Plaintiff 33.3% at fault for the collision but accepted that he was injured and awarded damages.
When all the dust settled, the Plaintiff was awarded $234,000.  ICBC argued that since the final result was “within a knife’s edge” of their offer that the Plaintiff should be stripped of his post offer costs and disbursements.  This was a significant development because the Plaintiff spent over $120,000 in disbursements while advancing his claim.
Ultimately Mr. Justice Wilson found that this result would not be fair.  However, the Court disallowed disbursements associated with one of the Plaintiff’s expert witnesses and further reduced the disbursements the Plaintiff was entitled to by 1/3 to take into account the jury’s finding of fault and section 3 of the Negligence Act.  Some quick math reveals this results in about $40,000 of the real costs of advancing the claim not being recovered by the Plaintiff.  This large swing highlights the need to consider potential costs consequences when deciding whether to settle an ICBC claim or to proceed to trial.
This recent case is also noteworthy for a few other reasons.  ICBC argued that the usual rule of a winner receiving costs should not be followed given how close the settlement offer was to the jury verdict.   Mr. Justice Wilson rejected this argument providing the following useful reasons:

[42] The governing principle on the first issue, is R. 14-1(9).  The material words of that subrule, on this application, are:

… costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[43] The onus is on the defendant to persuade me why I should otherwise order….

[55] The plaintiff reminds me that the discretion conferred by the cost rules must be exercised judicially.  The parameters of that judicial duty were referred to in Stiles v. B.C. (Workers’ Compensation Board), and iterated consistently thereafter.  The court said:

… The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied; if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[56] The Rules of Court mentioned in that extract are those cited above.  The “principles … developed …” or “purposes”, were referred to in Giles v. Westminster Savings and Credit Union:

The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted.  In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

•     “[D]eterring frivolous actions or defences”:  Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] S.C.C.A. No. 200, [1988] 1 S.C.R. ix;

•     “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”:  Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);

•     “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases”:  Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;

•     “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”:  Catalyst Paper Corporation v. Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.

[57] Giles is also authority for the proposition that the “usual rule” is that costs follow the event…

Here, this plaintiff did succeed.  The defendant’s argument is that he did not succeed to the extent of his aspirations.  Therefore, goes the argument, the defendant should have the costs of establishing that failure.

[81] In my opinion, that proposition is not a phenomenon contemplated by R. 14?1(14) or Forrest v. Gaidner.

[82] My conclusion on the first issue is that the defendant has not persuaded me that this is a case on which I should otherwise order.  The plaintiff is entitled to his costs, subject to the disallowance of one day of trial and disbursements associated with Dr. Hunt’s involvement.

More on the "Harsh" Reality of Part 7 Benefits Deductions in ICBC Tort Claims


Two Judgements were recently released by the BC Supreme Court discussing the “harsh” reality of Part 7 Benefits Deductions in ICBC Injury Claims.
As previously discussedif you are entitled to receive Part 7 Benefits under your policy of insurance and don’t pursue these a Defendant who is responsible for injuring you in a BC Motor Vehicle Collision can reduce the amount of damages that they have to pay you by the amount of benefits you should have received from your own insurance coverage.  Often after trial ICBC will argue that some of the awarded damages should be reduced for this reason.  The first of the two recent judgments demonstrates that these deductions could operate in a punishing way for Plaintiffs.
In the first case released this week (Kirk v. Kloosterman) the Plaintiff suffered “catastrophic and tragic” injuries in a motor vehicle collision.  The Plaintiff, who had a learner’s licence to operate a motorcycle, failed to obtain a full licence at the end of his probation period and for this reason was considered uninsured by ICBC.  He was struck by a vehicle operated by the Defendant and suffered serious injuries.  He became paralyzed from near the waistline down.  His spinal cord became infected while in hospital and this “literally chewed up a further portion of the spinal cord so that he has lost a great deal of his thoracic capacity and now his arms and shoulders must bear his weight and provide all his strength“.
A jury found the Plaintiff 15% at fault for the collision and the Defendant 85% at fault.   Damages of nearly $4 million were awarded less 15% to reflect the Plaintiff’s liability.   Following verdict the Defendant (who was insured with ICBC) applied to have some of these damages reduced because the Plaintiff was allegedly in breach of his no-fault plan with ICBC.   Mr. Justice Crawford granted the motion and reduced the damages by approximately $200,000.  In doing so the Court noted that while this was “harsh and even punitive” a Plaintiff who disentitles himself to his own ICBC coverage can be faced with a statutory deduction in their tort claim.  Mr. Justice Crawford provided the following reasons:

[]           Ms. Kloosterman says the law is clear and settled: if the plaintiff acts so as to disentitle himself, then the Court must calculate and apply the deduction. She argues that Mr. Kirk would have been entitled to benefits under Part 7, had he possessed a valid driver’s licence.

[]           It is plain that the legislative intention is to prevent double recovery, that is, to prevent a plaintiff from recovering the same amount of monies both by way of the defendant through a tort action and by way of no-fault insurance coverage. Given the legislative intention, it seems harsh and even punitive to not only deny a plaintiff, who has been found substantially not at fault in a motor vehicle collision and awarded damages for losses sustained, no-fault benefits but also to deduct the amount of his or her potential entitlement to Part 7 from the tort award. However, the case law is binding on me, and can only be construed differently by the Court of Appeal:  see Baart v. Kumar, (1985), 66 B.C.L.R. 1 (C.A.); Si v. Enns, , 2001 BCSC 1120.

[]           Accordingly, I accept the defendant’s submissions on this issue and find that there must be a deduction.

In the second case released this week (Gignac v. Rozylo) the result was not nearly as harsh but the case still demonstrates the reality that applications for statutory deductions can be made following vehicle collision cases.
In Gignac the Plaintiff was injured in a 2004 motor vehicle collision.  Following trial Mr. Justice Wilson awarded damages including $15,000 for ‘special damages‘ and just over $115,000 for ‘costs of future care‘.  (UPDATE August 17, 2012 the BC Court of Appeal reduced the cost of future care award by about $40,000.  Their reasons can be found here) ICBC then argued that these awards should be reduced by $25,000 to account for the fact that the Plaintiff can obtain money from ICBC for these expenses under their own policy of insurance.
Mr. Justice Wilson largely rejected ICBC’s arguments and made a modest deduction of $2,000 of the awarded damages.  In doing so the Court provided the following useful comments about the “level of abstraction” of ICBC’s permissive benefits scheme:

[23]        As I understand Ms. Lewko, if a benefit is not “specifically listed”, then, an insured’s entitlement to the benefit is dependent upon “ICBC claims handling procedures”, or “ICBC claims handling policies”, or “ICBC policy”.

[24]        Legislative support for this approach is s. 88(2)(f), the “other” category, referred to above.

[25]        The statute does not direct me to determine entitlement to benefits pursuant to ICBC policy; the direction is to determine entitlement pursuant to the plan.

[26]        Section 88(2)(f) is subject to the opinion of the corporation’s medical advisor that an expenditure is likely to promote the rehabilitation of an insured.

[27]        The opinion of that medical advisor is a necessary condition before resort may be had to s. 88(2)(f) of the Regulation.  Absent the necessary condition, the corporation is not authorized to pay benefits.

[28]        Rehabilitation means restoration.  This plaintiff’s debilitating condition is chronic pain.  Current medical science has no cure for this condition.  I find it improbable that a medical advisor would opine that any of the goods and services contained in the assessment of future care costs, would promote the rehabilitation of this plaintiff.  Those goods are services were recommended by the occupational therapist as necessary to enable this plaintiff to maintain an optimum level of functioning, now and in the future, and to maximize independence and prevention of further disability.

[29]        Alternatively, if I am wrong in my interpretation of the legislation, and ICBC policy is a relevant factor, then the applicant has not persuaded me that it is more likely than not that this plaintiff is entitled to the benefits in controversy.  The scales are evenly balanced.  Policy may authorize the benefit or it may not.  According to Ms. Lewko:

11.       It is ICBC policy that the exercise of discretion for permissive benefits must be rationally connected to the relevant factors governing an objective assessment of the entitlement to the benefit.

That is a level of abstraction which does not allow for a determination of entitlement on a balance of probability.

[30]        In result, the cost of future care assessment is reduced by $2,000.

Cost of Future Care Awards and Tax Gross Ups: Can Tax Planning Strategies Be Considered?


When Personal Injury Plaintiffs are awarded damages for costs associated with future medical care they are expected to invest the money and draw from this fund to pay for their future care needs over their lifetime.  The difficulty is that while personal injury damage awards are not taxable, investment income is.  To account for this Trial Judges have the ability to award further damages to set off these tax consequences.  This is called a “tax gross up” award.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing this area of law.
In today’s case (Sartori v. Gates) the Plaintiff was awarded damages by a Jury which included $41,000 for cost of future care.  The Plaintiff applied for a tax gross up and presented an actuarial report which concluded that approximately $10,000 would be necessary to offset the investment tax consequences from the cost of care award.  ICBC presented contrary evidence arguing that an award of $3,000 would be appropriate.
The main reason for the difference in the economists opinions was whether the Court could consider tax minimizing strategies in quantifying a tax gross up award.  Ultimately the Court held that these can be considered, however, the whole of these strategies are not to be applied solely to the damage award for cost of future care.   Mr. Justice Wilson provided the following practical reasons:

[20]         In result, I find the tax free savings account benefits to be a lawful consideration in defining the tax gross up amount.  That said, however, Townsend is also authority (among many, many others) for the principle that, “compensation aims at restoring the victim to the position that person would have been in had no loss been incurred”.

[21]         A cost of future care award is founded on the theory that the tortfeasor must provide a fund from which the victim may draw to meet future expenses as they occur.  It is a presumption of law that the fund will be invested and will earn income.  According to the theory, as I understand it, the fund and its income, is a separate stand-alone phenomenon.  It appears to me that Mr. Szekely has treated it as such in his analysis.  Therefore, the tax benefits available to the plaintiff, by virtue of a tax free savings account, are exhausted in this separate stand-alone account.

[22]         Commencing 1 January 2009, the plaintiff has been entitled to the tax benefits of a tax free savings account.  It seems to me that if I assign all of the tax benefits, from a tax free savings account, to this stand-alone account, then I will not be restoring the plaintiff to the position he would have been in had no loss been incurred.  To put it in Mr. Wickson’s terms, adopting Mr. Szekely’s approach, fails to recognize the plaintiff’s right to use the tax free savings account for his “first slice” income.

[23]         I have considered the tax benefits of a tax free savings account as a legitimate factor in determining the tax gross up and having done so, I conclude that in this particular case, Mr. Szekely’s calculations are not applicable in the determination of the tax gross up amount…

[31]         Finally, the fund available to meet the plaintiff’s costs of future care is $41,333.33.  I find it is more probable than not that the income to be earned from the investment of this fund will be interest income.  Therefore, I make no allocation for capital gain or dividend income and assess the tax gross up at $10,025.

Cyclist Found Fully At Fault For Collision With Vehicle


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the issue of fault following a serious collision between a cyclist and a vehicle.
In today’s case (Ireland v. McKnight) the Plaintiff was a doctor who was involved in a “career-ending road traffic incident” in 2007.   The Plaintiff was travelling southbound on his bicycle on Henderson Road.  At the same time the Defendant passed the Plaintiff in the same direction of travel.  At this time a collision between the bicycle and vehicle occurred.
The Court heard competing theories about how the collision occurred but ultimately found that the Plaintiff drove into the vehicle and was fully responsible for the crash.  In dismissing the lawsuit Mr. Justice Wilson provided the following reasons:

[22]         I find the defendants’ theory of how contact occurred to be the more plausible.

[23]         I find the front wheel of the bike contacted the right rear quarter panel of the car, behind the right rear wheel well.

[24]         If, as the plaintiff argues, the car was on a collision course with the bike, or failed to adjust sufficiently to avoid a collision course, then I find that the right front corner of the car would have struck the bike.  The evidence does not support such a finding.

[25]         I conclude that the plaintiff moved the bike to the left, concurrently with the turn of head in that direction.  But for the plaintiff moving the bike, there would have been no contact between the bike and the car.

[26]         I find the defendant driver passed the bike at a safe distance, and, on the evidence, that at least three-quarters of the car length had passed the bike before contact occurred.

[27]         In result, I find the defendant driver not liable for the incident.  It follows that the plaintiff’s claim against the defendant driver, pursuant to s. 86 of the Motor Vehicle Act, fails.

"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).
In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.
Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

Why ICBC's "Low Velocity Impact Program" Is Not the Law in British Columbia

Countless people have been injured in car crashes over the years in British Columbia and had their injury claims denied by ICBC on the basis of the Low Velocity Impact Program.
I have written many times about this program explaining that it has no legal force in BC.  Reasons for judgement were released today proving this yet again and in doing so providing one of the better explanations of why a certain threshold of vehicle damage is not necessary in order to have a successful personal injury claim in this Province.
In today’s case (Gignac v. Rozylo) the Plaintiff was involved in a 2004 collision in Victoria, BC .  At trial a ‘senior estimator‘ employed by ICBC testified that the Plaintiff’s vehicle suffered “cosmetic damage only to the rear bumper cover. ‘ and that ‘there is no bumper misalignment or sheet metal damage‘.
The Plaintiff was injured but ICBC advanced the LVI defence arguing that “given the very minor nature of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims‘.
Despite finding that the crash was ‘one of the more minimal contacts between motor vehicles in the history of the internal combustion engine‘ Mr. Justice Wilson outright rejected the LVI defence and in doing so provided the following very useful summary of the law:

[30] I am not persuaded that the third party’s argument is open to me to accept.  There are two propositions which lead me to that opinion.

[31] First, in Gordon v. Palmer , Thackray J. (as he then was) made the following observations:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  …  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slips and falls.  … The presence and extent of injuries are to be determined on the basis of evidence given in court.

[32] Second, in Price v. Kostryba,McEachern, C.J.S.C. (as he then was), said at para 4:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash.  Human experience tells us that these injuries normally resolve themselves within six months to a year or so.  Yet every physician knows some patients whose complaint continues for years, and some apparently never recover.

[33] Therefore, I conclude that Gordon is authority for the proposition that the magnitude of forces unleashed, in any given contact, is not determinative of the injuries sustained.  Accordingly, in this case, there was a “real risk” of the harm now complained of.

[34] And, Price is authority for the proposition that, objectively, some patients, of “ordinary fortitude” sustain injuries which are permanent.  In this case, I am not dealing with the particular vulnerabilities of this particular plaintiff.

[35] In result, I find the defendant liable for the plaintiff’s injuries.  That is to say, the defendant’s carelessness caused, as I will describe below, the plaintiff’s injuries, in fact and in law.

Losing Your Case With Your Own Evidence – More on Effective Cross Examinations

One of the most powerful tools a trial lawyer has is cross-examination.  In cross examination a lawyer can pose leading questions forcing a witness to agree or disagree and in doing so the lawyer seeks to get admissions that help his client’s case or hurt his opponent’s case.
In pre-trial examinations for discovery a lawyer has the right to ‘cross-examine‘ the opposing party.  By that I mean a lawyer is permitted to control the examination with leading questions.  If done effectively damage can be done to the your opponents case.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating the results of a persuasive cross examination.
In today’s case (Mann v. Rainsford) the Plaintiff was injured while viewing a neighbour’s open house.  As the Plaintiff was leaving the house she mis-stepped on a concrete slap (basically a step) along a pathway from the home to the sidewalk.  Having mis-stepped the Plaintiff fell and was injured.  She sued the home-owner claiming that this concrete slab was a hazard and that steps should have been taken to guard against this injury.
Mr. Justice Wilson of the BC Supreme Court disagreed and dismissed the Plaintiff’s lawsuit.   The Court noted that the Plaintiff’s injuries “were caused solely by her own inattention“.  The Court reached this decision largely by the Plaintiff’s own evidence which was given at examination for discovery.  The Plaintiff’s evidence clearly had a damaging impact on her case and the discovery exchange is worth reviewing for anyone learning about cross examination in personal injury lawsuits.  The damaging cross examination was as follows:

[29] The plaintiff explained the mechanics of the incident, at her examination for discovery, as follows:

92   Q  Tell me what you did when you left the house.

A   I walked out of the front door and I stepped down the first step.  And I remember I was looking at the garden.  And I tripped.  And I went to grab the handrail, but there was no handrail there and I fell forward down the step.

96   Q  You said you were looking at the garden?

A   Mm-hmm, yes.

97   Q  Which area of the garden were you looking at?

A   On the left-hand side coming out.

98   Q  So the right-hand side of the photograph, you were looking over that way?

A   Yes.

100 Q  You didn’t slip on anything, is that right?

A   No.

101 Q  And you didn’t trip on anything, did you?

A   No, there was no object there.

102 Q  You misstepped, is that right?

A   Yes.

128 Q  So you stepped off the landing onto —

A   The step, yes.

129 Q  — down the first step, and you did that fine.

A   Yes.

130 Q  So you got down onto, say, the second landing?

A   Yes.

131 Q  And then you went forward?

A   Yes.

132 Q  And then what happened?

A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

A   Yes.

137 Q  Why did you fall?  Do you know why you fell?

A   It wasn’t a normal configuration of steps going down, so I missed it.

138 Q  You just went up it 30 minutes earlier.

A   That’s correct.

139 Q  So you knew that there was a step and a landing and another step and a landing from when you just went up 30 minutes earlier, right?

A   I saw it as I went up, but I wasn’t looking at the stairs as I came down, because I don’t normally have to look and check to see where the steps are when you’re going down.

140 Q  You knew that this isn’t a staircase like at your house.  You knew that when you got there and you knew that when you went to go up into the house, right?

A   I saw it when I went up.

141 Q  So you knew that there were landings in between the steps and that you would have to walk to get to the next step, right?

A   Yes.

142 Q  I’m just trying to find out what was surprising to you that it was the same on the way out as it was on the way in.

A   I guess I hadn’t recalled the configuration when I left.

144 Q  So it was the same on the way out as it was on the way in?

A   Yes.

145 Q  It was simply just that you misstepped when you left the house, isn’t that right?

A   That’s correct, yes.

When preparing for discovery or trial you need to know that the defence lawyer will try to harm your case and must be prepared for a leading cross examination.  If not, you risk causing significant and possibly preventable damage to your claim.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
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