Tag: Paskall v. Scheithauer

BC Court of Appeal Upholds "low" Non-Pecuniary Damage Award in Brain Injury Claim

In what may be the low water mark in upheld assessed damages for a skull fracture and brain injury, the BC Court of Appeal upheld a jury’s damage award of $35,000.
In today’s case (Paskall v. Scheithauer) the Plaintiff was involved in a pedestrian/vehicle collision.  She sustained serious injuries including a left temporal skull fracture, a basal skull fracture and a traumatic brain injury.   The only expert evidence the jury heard from were independent medical examiners hired by the Plaintiff.  The Defendant conducted a defense medical examination but did not produce a report.  The Plaintiff did not call any of her treating physicians.  The Defendant argued that while the injuries were severe they recovered well, a conclusion the jury may have accepted.
In upholding the “low” assessed non-pecuniary damages the  BC Court of Appeal provided the following reasons:
[42]         The injuries sustained by the appellant were significant, but there is no schedule for an award of non-pecuniary damages based on the nature of the injuries sustained.  The function of damages in tort is to put the claimant into the position she would have been in had the tort not occurred.  Compensation for the trauma and pain of her injuries is required, but further compensation requires proof of ongoing adverse effects.  It is apparent that the jury, in its award of non-pecuniary damages, did not accept that the appellant has serious, ongoing adverse effects.
[43]         Although the award for non-pecuniary damages appears to be low, in my view, it was open to the jury to make it.  It reflects the jury’s consideration of the fact the appellant was injured seriously and its assessment that her injuries did not have a long-term serious effect.  I see no basis on which this Court could interfere with it.
In concurring reasons Madam Justice Saunders commented as follows:
[97]         My second comment is in respect to the award of non-pecuniary damages. Damages are a question of fact, as to which this court owes deference to the fact finder. The classic statement of our role as an appellate court found in Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.), has equal force today:
… Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell, [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld., [1942] A.C. 601). The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld., at 616).
                                                                                          [Emphasis added.]
[98]         While the award is very much at the low end of those amounts awarded for traumatic brain injury in many other cases, we cannot say, on the evidence the jury could have accepted, that the award is a “wholly erroneous estimate of her loss of amenities and enjoyment of life”.
[99]         Accordingly, I, too, would dispose of the appeal and cross appeal in the manner described by Mr. Justice Chiasson.

Medical Advisor Opinion a Prerequisite For Post Trial Discretionary Benefit Deduction

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Two sets of reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.
In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries.  ICBC sought to deduct mandatory and discretionary Part 7 benefits from this amount.  In discussing the burden required for these deductions and in denying the application Mr. Justice Smith provided the following reasons:
3]         The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: “I expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses”.
[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.
[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life…
[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.
[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.
In the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial.  ICBC sought to deduct some $16,000 in Part  7 items.  In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:
[24]         In her affidavit, the adjuster says that such a fitness program is “similar to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to “physical therapy”, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be “similar” to the named therapies.
[25]         Having regard to the requirement for strict compliance with the Act and its Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from “the corporation’s medical advisor” is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.
 

Defence Medico-Legal "Vacuum" Defeats Post Trial Costs Application

UPDATE January 28, 2014 – the BC Court of Appeal overturned the below result in reasons for judgement released today
____________________________________________________
In an interesting demonstration of the BC Supreme Court’s discretion relating to costs awards following trials where formal settlement offers were made, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to award ICBC costs where a Jury’s damages amounted to less than 10% of ICBC’s best formal settlement offer.
In the recent case (Paskall v. Scheithauer) the Plaintiff was injured in a 2005 motor vehicle collision.  Fault and damages were at issue.  Prior to trial ICBC tabled a $700,000 formal settlement offer.  The Plaintiff proceeded to trial and sought damages of over $2 million.  After a liability split of 80/20 in the Plaintiff’s favour the damages awarded by the jury came to just over $65,000.
Having enjoyed substantial financial victory as compared to their pre-trial offer, ICBC sought post offer costs and disbursements arguing their offer ‘ought to have been accepted’.  Mr. Justice Smith disagreed finding, interestingly,  that the the Defendant’s failure obtain medico-legal reports despite having the Plaintiff attend two independent medico-legal assessments created an evidentiary vacuum making it impossible for the Plaintiff to conclude that the formal offer was one that reasonably ought to have been accepted.  In dismissing ICBC’s sought costs the Court provided the following reasons:
[32]         In order to determine whether an offer is reasonable and ought to be accepted, the plaintiff must be able to consider it in relation to the evidence expected at trial and the apparent range of possible outcomes. In a personal injury case, that exercise usually includes consideration of conflicting medical opinions, along with the possibility and likely consequences of the court preferring certain opinions over others. Plaintiff’s counsel who is relying on an opinion from Dr. X can advise his or her client of the reduction in damages that may result from the court rejecting the evidence of Dr. X and accepting the opinion of Dr. Y that is being relied on by the defendant.
[33]         In this case, the evidence relied on by the plaintiff included opinions of a neuroradiologist, a neuropsychologist, a psychiatrist, an otolaryngologist and two physiatrists. The only experts put forward by the defendant on the question of damages were the occupational therapist dealing with cost of future care and the economist. The defendant served no medical expert opinions, although the plaintiff had attended two independent medical examinations at the request of defence counsel.
[34]         The onus of proof at trial is on the plaintiff. The defendant is under no obligation to produce medical evidence and may rely entirely on cross-examination of the plaintiff and the plaintiff’s medical experts to support an argument that the plaintiff has failed to prove damages. That is what defence counsel chose to do in this case, apparently with great success.
[35]         But the onus of proof at trial is not necessarily relevant to the question of whether an offer made before trial “had some relationship to the claim” or “could be easily evaluated”. In choosing to defend this case in the way he did, the defendant also chose not to provide the plaintiff with evidence on which she could judge the reasonableness of the offers to settle. With the plaintiff’s medical reports in hand, and in the absence of contrary medical opinions, I do not see how reasonable counsel could have recommended acceptance of either of the defendant’s offers or justified such a recommendation to the plaintiff.
[36]         A second factor for consideration set out in R. 9-1(6) is the relationship between the offer and the final judgment. However, the court cautioned against putting too much weight on this factor in cases involving jury trials, given the unpredictability of jury awards: Smagh v Bumbrah, 2009 BCSC 623 at paras 13-14.
[37]         In this case, I find the consideration under R. 9-1(6)(a) to be determinative. I am not only unable to say the offers ought reasonably to have been accepted, but I find that they could not reasonably have been accepted in the context of the evidentiary vacuum in which they were presented. I conclude the plaintiff is entitled to her costs as if the offers had not been made.

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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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