Tag: scott v. erickson

Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.
In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.
The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.

Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

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!”
Erik’s Philosophy

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