Friday, October 7, 2011

Doctor Who Bills ICBC Over $1 Million Per Year Found to Lack Objectivity

In a recent case, Drodge v. Koza, 2011 BCSC 1316, Madam Justice Dardi of the BC Supreme Court held that the opinion of one of ICBC's most widely used psychiatrists should be given no weight, because Judge Dardi commented, Dr. Solomon was not an impartial expert:

[53]         In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

According to ICBC's financial records Dr. Solomons billed ICBC $1,008,997 in 2009 for medical reports he provided to ICBC.  Given his financial relationship with ICBC Judge Dardi's finding that Dr. Solomon is not an impartial expert is not suprising. 

The full text of Judge Dardi's comments about Dr. Solomon are as follows:

Dr. Solomons

[49]         Dr. Solomons is a qualified psychiatrist who at the request of ICBC examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2, 2009. At trial I ordered that certain contents of his report be expurgated, on the basis that the statements were not properly admissible opinion evidence.
[50]         Dr. Solomons opined that Mr. Drodge did not sustain any functional brain injury as a result of the accident; nor did he develop any psychiatric condition or disorder as a result of the accident. It is Dr. Solomans’ view that the pre-conditions for the diagnosis of post-traumatic stress disorder were not met in this case. Rather, in his opinion Mr. Drodge presented with non-specific stress symptoms that potentially related to a number of causes, including physical pain, unemployment, financial constraints, and boredom. Other than some stress associated with his financial difficulties, he opined that Mr. Drodge’s present psychological status is “essentially normal”. Insofar as a prognosis, Dr. Solomans opined that there are no cognitive or psychiatric concerns, and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for any vocational activities.
[51]         In cross-examination Dr. Solomans admitted that a person could suffer from cognitive symptoms as a consequence of severe headaches. He agreed that headaches of this nature could affect someone’s mood and their ability to work, and that the headaches could therefore be disabling.
[52]         Although Dr. Solomons maintained that Mr. Drodge did not exhibit any cognitive difficulties during his interview, the evidence supports a finding to the contrary. In cross-examination he acknowledged that his notes from the interview indicate as follows:
Not had cognitive tests. Then he says did. Query name. Not remember when. About 18 months to two years ago. Not remember the feedback about the test results.
Not recall anything about it at all, not even why he was treated.
Moreover, Mr. Drodge had mistakenly told him he had sustained his back injury in 1986; his back injury occurred in 1996.

[53]         In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

posted by Collette Parsons at 0 Comments

Wednesday, July 6, 2011

Plaintiff Awarded $2.4 Million For Chronic Low Back Condition Caused by a Car Crash

In Bouchard v. Brown Bros. Motor Lease, 2011 BCSC 762, the Plaintiff, Maurice Bouchard, suffered a low back injury and chronic pain syndrome due to a motor vehicle accident and he was awarded over $2.4 Million dollars as follows:

Pain and Suffering            $160,000
Past Income Loss            $264,000
Future Earning Capacity   $1,500,000
Cost of Future Care         $475,000
Out of Pocket Expenses   $36,235.51

Total                                $2,435,235.51

The award was reduced by 40% to account for the chance that the Plaintiff's degenerative spine condition would have degenerated on its own regardless of the accident occurring.

The Plaintiff was 31 years old the time of trial and was limited to working in only part time sedentary jobs due to his injuries.  The trial Judge's full reasons can be viewed at the link provided above.

posted by Collette Parsons at 0 Comments

Tuesday, May 31, 2011

Hit and Run Accident Victim Entitled to Damages from ICBC - Despite ICBC's Credibility Attacks

In prior posts we have discussed the legislative framework in British Columbia as it relates to hit and run accidents.  In short, victims of hit and run drivers in BC can claim against ICBC in place of an unidentified hit and run driver.  However, the law in BC states that anyone wishing to make such a claim must take all reasonable steps to attempt to identify the hit and run driver or their claim may fail.  ICBC defends hit and run cases vigorously.  If you have been involved in a hit and run accident you should contact a lawyer to assist you as soon after the accident as you possibly can, and before you speak to ICBC.

In the recent case Burton v. ICBC, 2001 BCSC 653, ICBC challenged the Plaintiff's right to claim against ICBC in the place of a hit and run driver.  In the case the hit and run driver had been very aggressive toward the Plaintiff at the scene of the accident and she was afraid to get out of her car before the other driver fled the scene.  ICBC claimed that the Plaintiff was not a credible witness and that she had waived her right to recover against ICBC when she failed to get out of her car and confront the other driver.  Mr. Justice Macaulay did not accept ICBC's position and found the Plaintiff was a credible witness and had complied with her obligations under the Act.  Mr. Justice Macaulay stated as follows in his reasons dated May 19, 2011:

[1]             The plaintiff, Connie Burton, sues the defendant, Insurance Corporation of British Columbia (“ICBC”), pursuant to s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Act”), as a nominal defendant, arising out of an alleged hit and run accident that occurred in Duncan, B.C., on December 1, 2008. Mrs. Burton had stopped at a stop sign waiting to turn right and join southbound traffic on the Trans Canada Highway (“TCH”) when an unidentified vehicle hit the Burton vehicle from behind and, shortly after, left the scene.

[2]             At issue under s. 24(1) of the Act is whether Mrs. Burton made “all reasonable efforts to ascertain the identity of the unknown owner and driver” and that the identity of such persons is “not ascertainable”. Also at issue, if Mrs. Burton satisfies the test in s. 24(1), is quantum of damages.

[3]             The only two witnesses at trial were Mrs. Burton and her husband who had been a little ahead of Mrs. Burton in a separate vehicle. Mr. Burton became aware of the collision almost immediately after it occurred and returned to the area in time to make some observations of the unidentified vehicle.

[4]             ICBC challenges the credibility and reliability of Mrs. Burton. Much of the challenge is based on:  alleged inconsistencies between her evidence on examination for discovery and at trial; her alleged failure to disclose relevant information about the behaviour of the driver of the unidentified vehicle to the police or ICBC; and finally, the content of her statement to her then family doctor after she sought medical treatment for her injured shoulder following an incident at work. In spite of, and having considered, the challenges, I find Mrs. Burton to be credible. Her husband also corroborated important parts of her evidence.

[5]             Mr. and Mrs. Burton, along with their then eight year old son, were moving to Lake Cowichan on the day of the accident. Late in the day, Mr. Burton and his son, followed by Mrs. Burton who was alone in her own vehicle, returned a rental van to a commercial site just off the TCH immediately south of Duncan.

[6]             Before the drop-off of the van, both vehicles travelled east on Cowichan Way to a stop sign at the TCH. Based on Mr. Burton’s estimate, the stop sign was about 200 yards before the commercial premises. After turning right on to the TCH, there are two lanes for southbound traffic that cross a bridge at about halfway to Boyes Road where one turns right to go to the commercial premises.

[7]             Mrs. Burton was following some distance behind her husband’s vehicle as she approached the stop sign at about 6:00 p.m. It was dark out and raining. There was no street lighting in the immediate area, although there would have been some ambient light from the highway and businesses in the area including from the other side of the TCH which is four lanes in width.

[8]             The closest business was a restaurant located to Mrs. Burton’s left when she stopped. Only the rear of the building faced towards Cowichan Way. There were no windows on that side and occupants of the restaurant would not have had any direct view of the accident scene. At most, someone at the front of the restaurant would have been able to see the stop sign but not anything beyond the front of a car stopped at the site.

[9]             To Mrs. Burton’s right was an undeveloped treed area running alongside the Cowichan River and separating the river from Cowichan Way. There were no buildings between Cowichan Way and the river.

[10]         According to Mrs. Burton, she had not noticed any vehicle in her rear view mirror as she came to a stop and signaled a right turn. She recalls a big jolt and going forward into the steering wheel. There was some damage to the rear bumper of the Burton vehicle. According to both Mr. and Mrs. Burton, the rear trunk did not close properly afterwards and the driver’s seat bolts were sheared off. There is no independent corroboration of the latter areas of damage although ICBC had an opportunity to inspect the vehicle.

[11]         Mrs. Burton immediately speed dialed her husband on her cell phone and told him that she had been in an accident. While she was talking to her husband, the driver behind her got out of his vehicle and immediately began banging on the windows of the Burton vehicle as he approached the driver’s side door. The individual began opening her door and was yelling and swearing at her throughout. According to Mrs. Burton, he yelled: “Move the car off the road, let’s get this over and done with bitch.”

[12]         Again, according to Mrs. Burton, her husband told her to hang up and call 911. Mrs. Burton did so and immediately spoke to a dispatcher. She then told the driver that her husband was on the way and that she was speaking to the police.

[13]         The driver slammed Mrs. Burton’s door, returned to his vehicle, backed away and then passed by on her right side, turned south on the TCH and disappeared from her view. By about that point, Mrs. Burton observed her husband and son running towards her on the bridge. Only one other vehicle had approached from her rear and passed by while she was engaged with the driver.

[14]         Mr. Burton testified that, after speaking to his wife, he and his son ran along the side of the TCH and across the bridge towards her. At about the halfway point, he saw a white Reliant K car backing off his wife’s car. The driver then proceeded around the right side of the Burton vehicle and turned onto the TCH towards Mr. Burton. Mr. Burton attempted to take a cell phone picture of the license plate of the vehicle but was unsuccessful as another vehicle was in the way. After the driver passed Mr. Burton southbound, he turned right at Boyes Road and then disappeared from sight. As Mr. Burton approached his wife’s vehicle, he observed that the front half of her vehicle was in the southbound slow lane. There was no significant attempt to challenge this evidence on cross-examination.

[15]         Mrs. Burton described herself as crying and frightened by the sequence of events. She was afraid that the driver was going to pull her out of her car. She barely looked at him and did not ask him to produce any vehicle or personal identification. Mr. Burton testified that she appeared “freaked out”, afraid, motionless and crying when he arrived at her side. 

[16]         Mrs. Burton did not record the license plate number of the vehicle that collided with hers. She could not see the front license plate because of the point of impact. Nor did she observe the rear license plate that was likely at least momentarily visible as the vehicle passed on her right and turned onto the TCH.

[17]         In cross-examination, counsel for ICBC confronted Mrs. Burton with her denial on examination for discovery that the other driver opened her car door. According to her, she forgot. It is apparent that she gave a statement to ICBC the day after the accident stating that the driver opened her door and told her to get her car off the road. In addition, Mr. Burton also testified that, while he was speaking to his wife on the phone just before he told her to hang up and call the police, he overheard a voice in the background saying words like: “Let’s get this done bitch. Get out of the car bitch. Let’s get this done.” Mr. Burton also overheard the banging noises that preceded the conversation.

[18]         I am satisfied that Mrs. Burton’s account of the events immediately surrounding the accident is truthful and, in particular, that her description of the conduct of the driver and its effect on her are reliable.

[19]         I accept that Mrs. Burton was extremely frightened as a result of the conduct of the driver and that she did not want to do anything that might place herself further at risk. Added to the initial shock of being rear-ended and feeling injured, I am not surprised that Mrs. Burton did not attempt to obtain direct information from the driver respecting his identity or that she failed to make observations of his license plate as he left the scene. 

[20]         Before the accident, Mrs. Burton was healthy except for a chronic kidney condition. She was aware of pain immediately after the impact in her left shoulder and down her back on the right side. Although police and ambulance personnel attended and spoke to Mrs. Burton, she elected to have her husband drive her to the hospital. X-rays taken at the hospital confirmed that there were no bone fractures.


[21]         According to Mr. and Mrs. Burton, they informed the police of the events and were advised that the police would look for the driver. It is unlikely that the police tried to find the vehicle because there is a notation in the police file to the effect that the officer concluded the investigation after filling out an accident report.

[22]         During the weeks following the accident, the Burtons and many of their friends looked throughout the Duncan area for a vehicle with front-end damage of the type and description provided by Mr. Burton. One of the friends is a Tow Truck operator. He reported observing a similar car parked on Gibbons Road. Mr. Burton went to look at the vehicle. It was parked on private property with the front end, and any possible damage, hidden from view because it was parked in a snow bank. The vehicle was the same make and matched the general description but did not have a rear license plate.

[23]         Mrs. Burton telephoned the police and told the receptionist about the vehicle. Mrs. Burton was informed that the information would be passed on to the investigating officer although she never heard anything further from the police. On a later occasion, Mrs. Burton observed another vehicle matching the general description parked in a local parking lot. She did not approach or report that vehicle to anyone other than her husband because the driver was a woman rather than a man.


[24]         Counsel for Mrs. Burton submits that her lack of action to identify the vehicle or driver at the scene was reasonable having regard to the threatening and intimidating circumstances. Further, he contends that there was nothing to be gained by taking additional steps after the accident such as posting notices at the site or the restaurant, and advertising for witnesses to come forward in a local paper.

[25]         Counsel for ICBC contends first that I should not believe Mrs. Burton but I have rejected that contention. He also contends that Mrs. Burton reasonably ought to have taken steps at the scene to identify the driver and the vehicle. He says that her failure to do so was a matter of choice rather than distraction brought on by fear. Finally, he submits that the later actions to locate and identify the vehicle were also insufficient.


[26]         Section 24 and its predecessor have been judicially considered and applied many times. While the fact patterns in the cases are understandably divergent, there is little, if any, controversy in the law. In Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (B.C.C.A.), the Court of Appeal, referring to the predecessor section, set the bar fairly high for plaintiffs, stating at para. 9:
In my view the overall purpose of the section is to limit the exposure of [ICBC] to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be in their own interests, and which, by virtue of the section, become the interests of the corporation.I observe that the predecessor section referred to the names of the owner and driver not being ascertainable but did not expressly include the qualification now found in s. 24(1)(a) that the efforts to ascertain identity be reasonable.
[27]         Also significant is the decision of the Court of Appeal in Smoluk v. Insurance Corporation of British Columbia (1993), 83 B.C.L.R. (2d) 328 (B.C.C.A.). The court limited Leggett on the basis that the plaintiff in that case had decided not to pursue his rights. Smoluk, on the other hand, was prevented from obtaining information because the other driver fled the scene before she could do more than attempt to record the license plate number. Unfortunately, in her haste, she got the number wrong. The court also concluded that, once the error in the number was apparent, other steps such as advertising immediately after the event or setting up surveillance at the scene of the accident to look for the driver would have been highly speculative investigative steps and the plaintiff was not required to take them.

[28]         In McMahon v. Insurance Corp. of British Columbia (1998), 14 C.C.L.I. (3d) 7 (B.C.S.C.) at para. 28, Quijano J. accepted earlier authority that a reading of the above two decisions suggests that “‘all reasonable steps’ must be assessed in the context of each individual case.” In a recent decision, Goncalves v. John Doe, 2010 BCSC 1241, Harris J. reviewed several authorities interpreting “reasonable efforts.” I distill the following additional descriptors from the cases that he reviews, at paras. 8‑11 inclusive:
·                 Does not mean all possible efforts;
·                 Means logical, sensible and fair rather than absurd, whimsical or unwarranted;
·                 Not required to take action that is highly unlikely to produce any result; and,
·                 Includes a subjective aspect having regard to the plaintiff’s physical and mental condition at the time of and in the circumstances of the collision.
I do not need to refer expressly to many of the other cases referred to by counsel. With one exception, they represent applications of one or more of the propositions set out above in the facts of the particular case.

[29]         The exception to which I refer above is Breton v. Insurance Corp. of British Columbia (1990), 47 C.C.L.I. 221 (B.C.S.C.), a decision that predates Leggett. As I understand the latter, the Court of Appeal rejected the more narrow interpretation of the predecessor section found in Breton: Leggett at para. 6.

[30]         In addition to the facts already set out in my reasons, I accept that there was no pedestrian traffic in the immediate area at the time of the collision and, further, that many of the vehicles travelling in either direction on the TCH would be travelling through Duncan and unlikely to be within reach of advertising. Further, I consider it unlikely that the drivers passing closest to the accident site would even be aware that a collision had occurred on Cowichan Way, given the adverse weather and lighting conditions along with their limited vantage point as they passed by. As I have already set out, only one driver came along Cowichan Way after the collision before the driver responsible for the collision disappeared but that driver never stopped to offer assistance.

[31]         I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.

[32]         I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.

[33]         Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.

[34]         I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.

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Wednesday, May 18, 2011

ICBC's Appeal of Indivisible Injury Case Dismissed by Supreme Court of Canada

Recently the Supreme Court of Canada denied leave to hear ICBC's appeal of the BC Court of Appeal's decision in Bradley v. Groves.   The BC Court of Appeal's decision in Bradley v. Groves, 2010 BCCA 361, is an important decision because it deals with the distinction between divisible and indivisible injuries.  At law if multiple parties contribute to one indivisible injury they are all 100% responsible for the indivisible injury regardless of the fact that each party only contributed to causing the injury to some degree.  Whereas, in divisible injury cases, as one would expect, if multiple parties contribute only to specific discrete injuries each party is only responsible for the harm they cause.  These principles are thoroughly discussed in the seminal case on this issue, Athey v. Leonati, [1996] 3 S.C.R. 458.   

In Bradley v. Groves, 2010 BCCA 361, ICBC took the position that aggravation of a pre-existing injury is not an indivisible injury. ICBC contended that the trial judge must identify and "disentangle" any earlier tortiously caused injury from later harm and assess damages for each injury separately.  Flowing from ICBC's position, if correct, would be a finding that each defendant would only be liable for part of an invisible injury. 
Fortunately for Plaintiffs the Supreme Court of Canada refused leave to appeal and ostensibly upheld the reasons of the BC Court of Appeal.  On these issues the BC Court of Appeal stated as follows in Bradley v. Groves beginning at paragraph 32:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey, E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.  

Application to the Present Appeal

[38]        Without a finding of divisibility, the appellant’s arguments cannot succeed. The trial judge found as a fact that the plaintiff’s injuries from the first accident and the second accident were indivisible. The defendant and the other motorist both caused and contributed to the plaintiff’s soft tissue injuries. He also found those injuries were not separable. There is no basis on which to interfere with these findings of fact. Flowing from them is the conclusion of joint and several liability.

[39]        We find no error in principle in the reasons of the trial judge, and therefore dismiss the appeal from this part of his order.

posted by Collette Parsons at 1 Comments

Thursday, April 21, 2011

BC Court of Appeal Reduces Jury's Award for Pain and Suffering Damages

Recently, in Taraviras v. Lovig, 2011 BCCA 200, the BC Court of appeal reduced the damages for pain and suffering awarded to the plaintiff by a jury from $300,000 to $200,000. 

When cases are decided by juries the lawyers arguing the case are not allowed to suggest what the award for pain and suffering damages should be or to point to ranges of awards from cases decided by judges or other juries.  The jury must pick, without any frame of reference, a fair number to compensate the plaintiff.  Given this lack of information, many jurist have argued that it is improper for a Court of Appeal to second guess a jury's assessment of pain and suffering damages given that the assessment reflects our community's sense of what the damages should be and if a judge made standard is to be applied at the appellate level, then lawyers should be allowed to argue to jurors what an appropriate award for pain and suffering damages should be. 

It is also argued that defendants get two chances to win the case, so to speak, if non pecuniary damages awarded by juries can be reduced on appeal.  First, the defence gets the chance to argue the case and hope a jury will give a small award.  Second, they get to ask the Court of Appeal to reduce the award if it is large.  This argument makes some sense as it is extremely rare for a court of appeal to increase a jury's award for pain and suffering damages.

In Taraviras v. Lovig the Court discusses these issues and the principles to be considered when a reduction of a pain and suffering award is sought as follows:

Non-Pecuniary Damage Award

[27]         The first issue for consideration is the appellants’ argument that the award for non-pecuniary damages is wholly out of proportion to the loss Mr. Taraviras suffered.

[28]         The appellants ask this Court to consider that Mr. Taraviras was suffering from some pre-existing pain, he had degenerative changes in his spine, he had previously broken a vertebrae in his spine and he had required chiropractic treatment before the accident.  He also suffered from migraines before the accident.  They note, not all Mr. Taraviras’ pain was referable to the 2002 accident.  They note that Mr. Taraviras’ pain had largely resolved by 2005 at the latest.  They note that approximately four months after the accident, Mr. Taraviras told Dr. Hii, his general practitioner, that his lower back had improved by 75 percent.  In October 2005, Mr. Taraviras reported to Dr. Apel that he was about 80 percent improved and to Dr. Hershler, the same thing three days later.  By the time of the trial, Mr. Taraviras rated his back pain as a one or two on a ten point scale.  The appellants argue that the complaint of burning or tingling down his left leg could not possibly be related to the 2002 accident because Mr. Taraviras did not report this pain until three and one half years after the accident.  The appellants note that his numerous accidents following 2002 interfered with his recovery, aggravated his injuries, and demonstrated a “striking failure to take care of
himself and thus mitigate his losses”. 

[29]         The appellants note that Mr. Taraviras’ level of activity, both at work and in his private life, suggests he is in fact able to function in a reasonably normal way.  They note that Mr. Taraviras has continued to “work full time in the same position, albeit with some accommodation, over the last eight years, and he has been able to pursue his interest in real estate by purchasing and managing several rental apartments”.  I think it reasonable to assume, given the verdict reached by this jury, that the jury did not accept these arguments raised at trial, and again on appeal by the appellants.

[30]         The appellants argue that Mr. Taraviras’ injuries and symptoms fall far short of the kind that would warrant an award in the upper range of non-pecuniary damages.  The appellants ask this Court to substitute an award in the range of $40,000 to $100,000 for non-pecuniary damages.

[31]         In Boyd v. Harris, 2004 BCCA 146, K. Smith J.A. commented upon the important role of juries and the deference that ought to be accorded a verdict of a jury.  At paras. 9-12 he stated:

[9]        ... Because juries are not made aware of the range of awards that trial judges have established in previous cases, common sense and collective values must guide their deliberations. As a result, jury verdicts are unpredictable or, at least, less predictable than those of trial judges. This uncertainty of result inherent in a jury trial of a claim for damages, coupled with the additional costs associated with that mode of trial, must surely spur the parties to reach an accommodation short of trial. Risk, an important factor in settlement negotiations, is amplified when the trial is to be by jury; the range of settlements acceptable to the parties is thereby broadened and settlement prospects are enhanced. Appellate interference with jury awards, unless circumscribed, will tend to remove from the system this incentive to settle cases.

[10]      Further, juries bring to the assessment of the evidence a common sense that derives from wide and varied experiences in life. As well, a jury's assessment of damages is influenced by the community's values and its opinions of what would be fair, just, and reasonable in the circumstances. Mr. Justice Cory referred to the qualifications of juries to assess damages in Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 ¶ 158 where he said:
Jurors are drawn from the community and speak for their community. When properly instructed, they are uniquely qualified to assess the damages suffered by the plaintiff, who is also a member of their community. This is why, as Robins J.A. noted in Walker v. CFTO Ltd. (1987), 59 O.R. (2d) 104 (C.A.), at p. 110, it is often said that the assessment of damages is “peculiarly the province of the jury”. Therefore, an appellate court is not entitled to substitute its own judgment as to the proper award for that of the jury merely because it would have arrived at a different figure.

[11]      On the other hand, while great deference must be afforded to jury awards, appellate courts have a responsibility to moderate clearly anomalous awards in order to promote a reasonable degree of fairness and uniformity in the treatment of similarly-situated plaintiffs. As well, outlier awards, if not adjusted, could lead to a perception that the judicial system operates like a lottery and to a consequent undermining of public confidence in the courts.

[12]      The difficult problem is how to identify the extent of permissible deviation from the conventional range of awards. [...] what is the acceptable range and what is an excessive deviation from the range in a given case are questions on which there may be reasonable differences of judicial opinion.
And at para. 42, he concluded:
[42]      ... Requiring a greater margin of deviation in the case of a jury award respects the parties' original choice to have the damages assessed by a jury rather than a trial judge. It also promotes the instructional function of jury awards, in the sense that, to some extent, departure from the conventional range established by trial judges may serve as a corrective to the views of trial judges by shifting the range so that it more accurately reflects current community standards.
[32]         The standard of review on appeal of a non-pecuniary jury verdict was described recently in Moskaleva v. Laurie, 2009 BCCA 260 at para. 127.  There, Rowles, J.A. speaking for the Court said, “in the case of a jury award, appellate interference is not justified merely because the award is inordinately high or inordinately low, but only in that ‘rare case’ where it is 'wholly out of all proportion' or, in other words, when it is ‘wholly disproportionate or shockingly unreasonable’” (citations omitted).

[33]         Importantly, she drew a distinction between this Court’s standard of review on an appeal of a judge alone award (that of “inordinately high or low” or “wholly erroneous”), as compared to the more deferential standard of review on an appeal of  a jury verdict.  Rowles J.A. confirmed what K. Smith J.A. said in Boyd at paras. 5 and 41-42, that a jury award of damages should be allowed “a ‘greater margin of deviation’ from the range that would be considered reasonable if the damages were assessed by a trial judge” (Moskaleva at para. 110).

[34]         This case is not one in which the victim has suffered catastrophic injury.  Mr. Taraviras’ permanent disability is, by all accounts, a moderate one, thus it is irrelevant how Mr. Taraviras’ injuries compare to those of the plaintiffs in the Supreme Court Trilogy (Moskaleva at para. 132). 

[35]         What is relevant is how the non-pecuniary award in this case correlates to Mr. Taraviras’ particular circumstances.

[36]         In my review of the non-pecuniary jury verdict in this case, I must accept that the jury resolved all evidentiary conflicts in favour of Mr. Taraviras.  I have described some of his evidence and I proceed on the assumption that the jury did accept this evidence.  In other words, the question to be resolved is – taking Mr. Taraviras’ case at its most favourable, is the award nevertheless so exorbitant that it would shock this Court’s conscience and sense of justice? (Moskaleva at para. 116; Whiten v. Pilot Insurance Co., 2002 SCC 18).

[37]         At paras. 41-42 of Boyd, K. Smith J.A. provided a helpful structure to the analysis of an alleged ‘wholly disproportionate’ non-pecuniary award:

[41]      Our first task is to determine whether the decisions cited by the appellant are reasonably comparable to this case and whether they suggest a range of acceptable awards. Then, we must determine whether this award is within that range and, if not, whether it falls so substantially outside the range that it must be adjusted.

[42]      The identification of comparable cases is not a simple task. Each case is unique. The process should be systematic and rational, not conclusory. We must therefore search for common factors that influence the awards, such as, most obviously, the age of the plaintiff and the nature of the injury. However, comparisons can be made on a more abstract level, as well. The factors to be considered include the relative severity and duration of pain, disability, emotional suffering, and loss or impairment of enjoyment of life. The awards in the comparable cases must be adjusted for inflation. When the appropriate range is identified, adjustments must be made for the particular circumstances of this case, including the plaintiff’s need for solace, which must be considered subjectively. Then, in determining whether the award falls so far outside the acceptable range as to justify appellate interference, we must make allowance for the fact that the award was assessed by a jury.  
[Citations omitted.]
[38]         Counsel for Mr. Taraviras argues on appeal that this Court should restrict its review of what I would call the comparator cases, solely to appellate reviews of jury awards.  The approach favoured by the respondent is based upon the Chief Justice’s dissent in Stapley v. Hejslet, 2006 BCCA 34, in which he noted that the present regime of using comparator cases is a “kind of ‘win win’ equation for the defence, and has the appearance of unfairness” (Stapley at para. 123).
[39]         Mr. Taraviras further argues that Moskaleva, and perhaps Ferguson v. Lush, 2003 BCCA 579, support the approach advocated by the Chief Justice in Stapley.  In Moskaleva, Rowles J.A. said in respect to comparison of jury verdicts to judge alone awards, at para. 128:
[128]    Support for the view that in order to determine whether a jury award is “wholly out of all proportion” or “wholly disproportionate or shockingly unreasonable”, it is appropriate to compare the award under appeal with awards made by trial judges sitting alone in “the same class of case” may be found in Cory, but that approach may not be in accord with Lindal. Criticism of that approach is found in Gibbs J.A.'s dissent in Cory at paras. 49-52; Ferguson v. Lush, 2003 BCCA 579, 20 B.C.L.R. (4th) 228 at paras. 33-43; and Finch C.J.B.C.’s dissent in Stapley at paras. 116-124.
[40]         In Ferguson, Thackray J.A. expressed some doubt about the comparator approach (at paras. 45-50), on the basis that it is illogical to withhold from a jury comparator cases, but then hold that the jury has made a palpable error by assessing damages wholly out of proportion to similar cases (see also: Thackray J.A.’s dissenting comments in White v. Gait, 2004 BCCA 517 at para. 70).  Nevertheless, he accepted that such an approach has been adopted by this Court (Ferguson at para. 52).  As I understand the judgment of Rowles J.A. in Moskaleva, she did not reach a firm conclusion about the correctness of the comparator approach.  From my review of these authorities, I conclude that it is appropriate and logical to use comparator cases as a rough guide to assist the court on appellate review: Cory, Cody, Boyd, Smith J.A. in Lam v. Main, 2003 BCCA 517 at para. 8.

[41]         In my view, the concerns expressed in the dissenting reasons of Gibbs J.A. in Cory, and Finch C.J. in Stapley are adequately addressed by the more deferential standard of review applied to jury awards and the greater ‘margin of deviation’ which is permitted in the range of such awards.  The standard expressed by Rowles J.A. in Moskaleva, and the approach described by K. Smith J.A. in Boyd strike the appropriate balance between the need to ensure fairness and uniformity on the one hand and the corrective, settlement-enhancing function of juries on the other.

[42]         There is no doubt that a jury award ought not to be set aside for failing to conform to judge alone awards (Cody at para. 125), but in my view, to fail to consider comparator cases as some sort of rough guide could “lead to a perception that the judicial system operates like a lottery and to a consequent undermining of public confidence in the courts” (Boyd at para. 11).  At para. 49 of his dissent in Cory, Gibbs J.A. acknowledged that comparator cases might serve this limited purpose.  I see nothing inconsistent with the test enunciated in Moskaleva and the use of comparator cases to inform the appellate court in the application of the Moskaleva test.  To do otherwise leaves the appellate review as a wholly intuitive exercise which risks inconsistent results from case to case.

[43]         Thus, I view the task on appellate review of an award alleged to be inordinately high is to assume that the jury found the facts most favourable to the plaintiff, and then to first compare the award to judge alone assessments in a generous way, and then to assess the appropriate “margin of deviation”’ applying the Moskaleva test – that is, whether the award would “shock the court’s conscience and sense of justice”.  As to what deviation would shock the court’s conscience, I do find other appellate cases to be a useful guide.  It is clear from the authorities discussed that considerable deference must be accorded a jury verdict and even where on appellate review the award must be reduced, such reduction should continue to reflect the views of the jury implicit in the verdict.

[44]         The appellants rely on the following cases in support of their position that an assessment of Mr. Taraviras’ non-pecuniary claim, before a judge sitting alone, would have fallen in the range of $40,000 - $100,000:  Verhnjak v. Papa, 2005 BCSC 1129; Jang v. Khera, 2002 BCSC 60; Dawson v. Gee, 2000 BCSC 147; Notenbomer v. Andjelic, 2008 BCSC 509; and Ayoubee v. Campbell, 2009 BCSC 317.

[45]         Ms. Notenbomer was, at her trial, a 45-year-old insurance underwriter.  As a consequence of a motor vehicle accident, she suffered a permanent partial disability owing to continuous low back and sciatic pain.  She did have some pre-existing back problems.  She underwent two spinal surgeries.  The judge concluded that the motor vehicle accident caused or contributed to her injuries and assessed non-pecuniary damages of $100,000.  From the judge’s description of the symptoms, I would conclude that Ms. Notenbomer’s symptoms were more severe than those suffered by Mr. Taraviras.

[46]         Mr. Ayoubee was a 34-year-old man at the time of his trial.  He suffered a herniated disc, with associated pain in his leg.  He suffered from constant pain in the six years between the time of the accident and the trial.  He had deferred surgery on his back, but by the time of the trial, he had determined that he would likely undergo surgical repair of the badly herniated disc.  His injury and symptoms are somewhat comparable to Mr. Taraviras’.  He was also awarded $100,000.

[47]         I am satisfied that both of these cases are appropriate judge alone comparators.

[48]         I found the remaining cases cited by the appellant unhelpful for comparison purposes.

[49]         The respondent cited only appellate review (not judge alone) cases in its factum:  Moskaleva; Alden v. Spooner, 2002 BCCA 592, leave to appeal ref’d [2002] S.C.C.A No. 535; and Bransford v. Yilmazcan, 2010 BCCA 271.

[50]         To assist me in determining if the jury’s award of almost three times the upper end of the judge alone range requires appellate intervention, I have reviewed the appellate cases cited by the respondent. 

[51]         In Moskaleva, a 53-year-old plaintiff suffered a mild traumatic brain injury, headaches, fatigue, and depression.  There was medical evidence that the injury caused permanent cognitive deficits.  The plaintiff and her husband testified that the effects of her brain injury on her cognitive abilities precluded her from pursuing her vocation as a software designer.  The jury awarded her $245,000 for non-pecuniary damages.  This Court did not reduce the award on appeal.

[52]         In Alden, a 17-year-old student was injured in four accidents.  Prior to the accidents she was a good student, a competitive runner, and had hoped to pursue a career in sports medicine.  The jury awarded her $200,000 for non-pecuniary damages.  As a result of the accidents she developed chronic pain syndrome or fibromyalgia and she became depressed.  Rowles J.A. noted that the “combined effect [of the four accidents] was physically and emotionally devastating to the plaintiff” (at para. 29).  The jury award, though acknowledged to be high, was not reduced on appeal.

[53]         In Bransford, a 26-year-old woman was injured in a motor vehicle accident.  Both before and after the motor vehicle accident she worked as a flight attendant but her neck pain eventually led to her leaving a succession of jobs.  By trial, she was unable to work and was on disability benefits.  She was diagnosed with thoracic outlet syndrome.  She underwent surgery but it did not alleviate her pain and disability.  The jury awarded her $385,000 for non-pecuniary damages.  The trial judge reduced the award to the upper limit of $327,000.  On appeal this Court, per Hall J.A., found that the award was “sufficiently anomalous that it [called] for appellate intervention” and reduced the award to $225,000 (at para. 22).

[54]         I also found the case Knauf v. Chao, 2009 BCCA 605, to be a helpful appellate-level comparator.  In Knauf, the jury awarded $235,000 in non-pecuniary damages for a permanent soft-tissue injury.  The plaintiff was age 35 at the time of the accident.  Her injuries forced her to quit her part-time job as a server and to curtail her recreational activities.  The court considered the plaintiff’s injuries to be significantly less serious than those suffered by the plaintiff in Moskaleva (paras. 48-49).  Having found that the award was wholly disproportionate, the court reduced it to $135,000, noting that improper comments made by plaintiff’s counsel may have influenced the jury (paras. 57-58).

[55]         Here, Mr. Taraviras testified that his life had, in almost all respects, been affected by this accident.  He could no longer work in the same robust way he had worked previously.  His renovation and property acquisition business was limited by his inability to do the heavy maintenance and renovation work.  He could no longer participate in his previous active sporting life.  His personal relationships were affected by his short temper and more sedentary lifestyle.  He complained of constant pain in his leg and back.  He could no longer enjoy his employment.  Taking the plaintiff’s case at its most favourable, I would conclude that Mr. Taraviras’ injuries in this accident had a devastating effect on his previously active and energetic life.  I must assume that the jury did not accept the proposition advanced by the defendants that his pre and post-accident injuries were causative.

[56]         Even accepting Mr. Taraviras’ case as I have, I am of the view the award for non-pecuniary damages does require appellate intervention.  This is one of those awards that is so out of all proportion to the circumstances of the case that it would shock the conscience of the court to leave it undisturbed.  It is wholly out of proportion to the injuries suffered by Mr. Taraviras and must be set aside.  In granting considerable deference to the jury and using the judge alone and appellate cases as some guidance, I would reduce the award from $300,000 to $200,000.

posted by Collette Parsons at 0 Comments

Tuesday, April 12, 2011

ICBC is Repeatedly Denied Late Medical Examinations

Recently in a case called Labrecque v. Tyler, Master Bouck of the Supreme Court of British Columbia denied ICBC's application for a late medical examination made shortly before trial.  ICBC was requesting the examination after the 84 day deadline for service of medical reports.  In denying the application Master relied on two cases that were argued by Richard Parsons, of Collette Parsons.  The two cases Master Bouck relied on are Wright v. Brauer, and Luedecke v. Hillman.  In her reasons denying the late medical examination Master Bouck stated as follows:


[21]         The narrow issue resolved on this application is whether the plaintiff should have been required to attend an examination by Dr. Piper pursuant to Rule 7-6 for the purposes of obtaining “purely responsive” evidence to Dr. MacKean’s written opinion.

[22]         I concluded on March 28th that such attendance was neither required nor justified on the evidence presented.

[23]         The defence concedes that it is too late to obtain an order under Rule 7-6 for an examination that goes beyond a purely responsive purpose.

[24]         In addition, I did not understand the defendant to be requesting an extension of time for delivery of a report from Dr. Piper even if no examination occurs. On that note, there is no evidence which might justify such an order as Dr. MacKean’s report has been in the defendant’s possession for nearly five months.

[25]         Similar applications have been considered by the court in the following cases:  Wright v. Bauer, 2010 BCSC 1282; Luedecke v. Hillman, 2010 BCSC 1538; Boudreau v. Logan (December 19, 2010), New Westminster M120748 (B.C.S.C.); and Crane v. Lee (September 16, 2010), New Westminster M1000793 (B.C.S.C.).

[26]         Wright v. Bauer is the first reported decision which addresses the purpose of new Rule 11‑6 (4).

[27]         For this discussion, it is helpful to set out Rules 11-6(3) and 11-6(4):

(3)        Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,
            (a)        by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert's report at trial, or
            (b)        if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial.
(4)        Unless the court otherwise orders, if a party intends to tender an expert's report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
            (a)        the responding report, and
            (b)        notice that the responding report is being served under this rule.
[28]         In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29]         In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30]         In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31]         The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32]         In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination.
[33]         This decision of Cullen J. concerns an appeal from a Master’s order that required the plaintiff’s attendance at a medical examination “to provide a response report pursuant to Rule 11‑6(4).” The Master’s reasons for doing so were as follows:
[9]        Firstly, the application is for an IME for a responding report. The deadline set out in the rules for a responding report is 42 days, pursuant to Rule 11-6(4). Based on the submissions of the defendant, the report will be delivered prior to that deadline. The examination is scheduled for this week, and I will point out that this application is brought on a short leave as a result.
[10]      Secondly, the determination as to whether the report is properly responsive - whether the report is admissible and for what purpose - is for the trial judge. Savage J in Wright considered the CNR case for purposes of interpreting what is appropriate as rebuttal evidence, but in my view, the definition in CNR is not conclusive here. As the defendant submits, Stainer suggests a broader approach to what is proper rebuttal. Dr. Reebye says he needs an examination to provide an opinion in response to the plaintiff's expert, and it is for the trial judge to determine whether or not the report which is ultimately produced falls within the scope of Rule 11-6(4).
[11]      Thirdly, it has not been established that, to the extent a balancing of prejudice is to be conducted, the balance here favours the plaintiff. The examination will take place 74 days before trial, and as I said earlier, the report will arguably be in time under Rule 11-6(4). The plaintiff will have to attend for an examination, but the situation is not what it was in White v. Gait, 2003 BCSC 2023, where the examination was to take place within 30 days of trial. The concern of Master McCallum in White was that the plaintiff would be involved in preparing for trial. That kind of difficulty or prejudice is not present here.
[12]      On the other hand, the defendant is prejudiced in not having a report for trial. While it was a deliberate choice on the part of the defendant not to obtain a report, it was based on the state of the medical evidence up until the 84-day deadline. The delivery of Dr. Armstrong's report at the 84-day deadline has altered that situation and I am satisfied that the defendant would be prejudiced proceeding without a responding report in the circumstances.
at para. 6.
[34]         The court upheld the Master’s order finding that:

[52]      I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such that as that called by the plaintiff in response to the defendant’s case, with its consequent limitations. Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case. Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.
and further:
[54]      I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert's report under Rule 11-6(4). That threshold is different from that for ordering an expert's report under Rule 11-6(3). To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party. It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff's case.
[35]         In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36]         In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37]         Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

[38]         Nonetheless, even if Dr. Piper’s evidence does provide the necessary justification, the prejudice to the plaintiff in attending an examination outweighs any prejudice to the defence in denying the order sought.

[39]         The plaintiff in Luedecke could not reasonably argue prejudice based on the timing of the delivery of any new report. The report would be delivered in compliance with Rule 11-6(3). That is not the situation here. The defendant seeks to address this prejudice by asking the court to extend the time for delivery of Dr. Piper’s report and thus abridge the Rule. However, the only justification for such an order would be that the defendant did not have an opportunity to make this application in a timely manner upon receipt of Dr. MacKean’s opinion in October 2010. No evidence is presented explaining that delay.

[40]         Furthermore, Luedecke represents a situation whereby the plaintiff’s case significantly changed upon the delivery of expert reports. Until that time, the defence did not appreciate the case that was expected to be met. That is different from the circumstances here where, again, Dr. MacKean’s opinion has been known to the defence for several months.

[41]         Lastly, on the question of prejudice, the defendant’s application comes at a time when the plaintiff could or should be preparing for trial. An examination by Dr. Piper would disrupt that preparation and should not be ordered: White v. Gait, 2003 BCSC 2023; Benner v. Vancouver (City), 2007 BCSC 1998.

[42]         As observed by the court in Benner v. Vancouver (City), a party “who takes no timely steps to exercise its rights under [Rule 7-6] does so at its peril”: para. 39.

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