Tuesday, September 30, 2014

Nurse Awarded $680,000 Following Rear-End Collision

Earlier today, the B.C. Supreme Court released its judgment in the case of Hawkins v. Espiloy 2014 BCSC 1804, where the 30 year old Plaintiff was injured in a rear-end collision while completing her nursing degree.

As a result of the accident, the Plaintiff experienced pain, bilateral foot numbness, and several episodes of urinary incontinence, in the weeks and months following the accident. Injuries and the effects of medications used to treat her numerous symptoms prevented the plaintiff from attending her required practicum sessions, and compromised her ability to concentrate during classes. Within months of the accident, the Plaintiff had experienced significant physical and psychological changes. With changes in medication, the Plaintiff did experience some relief and was able to graduate from her nursing program. Initially, the Plaintiff accepted a full-time position as an acute care nurse, a goal she had worked toward from a young age, but shifted to part-time work within seventeen months, on account of her physical limitations.

The Defendant made submissions suggesting that the Plaintiff’s move from full-time to part-time work was made for the purposes of both scheduling certainty and work-life balance, questioning whether injury factored into this decision at all. Madam Justice Fenlon dismissed these submissions, stating:

[56]      I find that the plaintiff has established that she is working part-time because of her injuries and not by preference. I earlier alluded to Ms. Hawkins’ testimony concerning her passionate desire to serve her community as a full-time acute care nurse. If Ms. Hawkins really was interested in working less and enjoying life more given the low cost of living in Mackenzie and her relative financial security, she could have worked part-time from the date of her graduation. In this regard it is telling that she did not apply for the permanent part-time position when it was first created in April 2013 despite being urged to do so by her family. She applied only in August 2013, as her ability to cope declined, when she finally and reluctantly admitted that she could not continue as she had been.

[57]    The defendant points out that the plaintiff’s sick days did not increase as her 17 months of full-time work at the Mackenzie Hospital unfolded. While that is true, I attribute it to Ms. Hawkins’ general stoicism and her sense of responsibility to her patients. I accept that it was the avocational aspects of her life that increasingly suffered, rather than her attendance at work.
The Defendant further argued that the Plaintiff’s pregnancy also supported the Defendant’s position that the Plaintiff reduced her hours to part-time work as a matter of choice and not necessity.

The Court responded, stating:

[60]     The description of Ms. Hawkins’ pre-accident energy and work ethic is not consistent with someone who prefers leisure time. I accept Ms. Hawkins’ testimony that she always planned to be a full-time worker. Both Justin Hawkins’ parents and Ms. Hawkins’ parents live in Mackenzie and are eager to provide childcare. I find it highly probable that Ms. Hawkins would have worked full-time throughout her career but for the accident, other than during maternity leaves.
[61]      In summary on this issue, I find Ms. Hawkins chose to work part-time because her injuries make full-time work unsustainable.

In assessing the Plaintiff’s loss of future earning capacity, the Court found that the Plaintiff was likely to suffer significant out-of-pocket loss as a result of employment limitations caused by the accident, stating:

[66]     In assessing damages, the out-of-pocket loss to the plaintiff due to her lost earning capacity must take into account contingencies, both negative and positive: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.). Such contingencies include the potential for improvement in health, opportunities for advancement, loss of employment, and the usual chances and hazards of life.
[67]     Mr. Wickson, a consulting economist, calculated the loss of future earnings at $852,400 based on the difference between full and part-time earnings. However, that base calculation must be adjusted for positive and negative contingencies. In the case before me, the plaintiff might in future work more than 0.62 of a full-time position. Ms. Hawkins testified that she accepted on average one extra shift per month. This contingency would therefore decrease the magnitude of the loss.
[68]     The plaintiff might also become accustomed to better managing her chronic pain and may be able to increase her regular hours of work.
[69]     On the negative side, as Ms. Hawkins ages, Dr. Filbey predicts that her condition may worsen, making it more difficult for her to continue in her physical job, even on a part-time basis.
The Defendant made submissions calculating $25,000 as adequate compensation for the Plaintiff’s loss of future earnings.

The Court responded to this submission, finding:

[72]     The plaintiff is 30 years old. She has a career of 35 years ahead of her. I accept that the plaintiff has lost capacity for work due to her injuries and that she will suffer a significant out-of-pocket loss as a result. Damages are not a precise calculation but an estimate of loss. I fix that loss at $525,000.
Finally, in dismissing the Defendant’s argument that the Plaintiff failed to mitigate her losses by not seeking formal accommodation from her employer, the Court held:

[77]     The defendant has the burden of proving the plaintiff could have avoided all or a portion of her loss. This involves proving two elements:  first, that the plaintiff acted unreasonably in not taking the step advocated by the defendant; and second, the extent, if any, to which the plaintiff’s damages would have been reduced had she taken that step:  Chiu (Guardian ad litem of) v. Chiu, 2002 BCCA 618 at para. 57. The test is a subjective/objective one, which takes into account the knowledge possessed by the plaintiff in considering the advocated step:  Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56.
[78]     Although in both Chui and Gregory the alleged failure to mitigate involved recommended medical treatments, this test has also been applied in cases where the defendant alleges the plaintiff ought to have mitigated his or her loss by seeking formal employment accommodation or other positions within his or her field:  Gallina v. Honda Canada Finance Inc., 2014 BCSC 974 at paras. 122-131; Sendher v. Wong, 2014 BCSC 140 at paras.126-132, 139-145.
[79]    In the present case, the defendant has not proved the second component of the mitigation test. There is no evidence before me either that accommodation was available or that if it were, it would have permitted Ms. Hawkins to work more than 0.62 of a full-time position.
[80]      In summary on this issue, the defendant has not established that the plaintiff failed to mitigate her losses.

The Plaintiff was awarded total damages of $684,149.65.

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Monday, September 22, 2014

Driver Negligent for Risky Passing During Heavy Snowfall

On September 19, the Supreme Court of British Columbia released its judgment in a case where a highway motorist was covered in snow by an overtaking vehicle, resulting in a single vehicle collision with a safety barrier.

In Link v. Insurance Corporation of British Columbia 2014 BCSC 1765, Mr. Justice Ball found the actions of the defendant driver to be negligent, contrary to ss. 157-159 of the Motor Vehicle Act, when he maneuvered dangerously while overtaking another vehicle in heavy snowfall conditions.

The plaintiff had been following tire tracks along the slow lane, or curb lane, while travelling southbound on Highway 99 during heavy snowfall. Traffic had been moving single file at approximately 40-60 kilometers per hour. The defendant driver’s SUV approached the plaintiff from behind then moved into the passing lane, overtaking the plaintiff’s vehicle at high speed before abruptly cutting in front of him. The maneuver resulted in a “rooster tail” of snow covering the plaintiff’s windshield. Unable to see, the plaintiff instinctively tapped the brake, which caused his vehicle to spin and collide with the cable-and-post safety median. At issue in this case was whether or not the defendant driver’s actions constituted negligence.

The Court identified the relevant provisions establishing a statutory duty of care, as follows:

[8] Sections 157-159 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] establish a statutory duty of care on the driver of a vehicle overtaking another vehicle. These provisions provide as follows:
157 (1) Except as provided in section 158, the driver of a vehicle overtaking another vehicle
(a)  must cause the vehicle to pass to the left of the other vehicle at
                      a safe 
distance, and
(b)  must not cause or permit the vehicle to return to the right side of
highway until safely clear of the overtaken vehicle.
(2) Except when overtaking and passing on the right is permitted, a driver of an overtaken vehicle,
(a) on hearing an audible signal given by the driver of the overtaking
                     vehicle, m
ust cause the vehicle to give way to the right in favour
                     of the overtaking 
vehicle, and
(b)  must not increase the speed of the vehicle until completely
                      passed by the 
overtaking vehicle.
158 (1) The driver of a vehicle must not cause or permit the vehicle to overtake and pass on the right of another vehicle, except
(a)  when the vehicle overtaken is making a left turn or its driver has
                      signalled his 
or her intention to make a left turn,
(b)  when on a laned roadway there is one or more than one
                      unobstructed lane 
on the side of the roadway on which the driver
                      is permitted to drive, or
(c)  on a one way street or a highway on which traffic is restricted to
direction of movement, where the roadway is free from
                      obstructions and is of 
sufficient width for 2 or more lanes of
                      moving vehicles.
(2) Despite subsection (1), a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right
(a)  when the movement cannot be made safely, or
(b)  by driving the vehicle off the roadway.
159 A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

In distinguishing this case from those proffered by counsel, the Court pointed out that here the hazard was clearly visible to all drivers on the road, and that despite this awareness, the defendant chose to conduct his vehicle in a manner which he did know or ought to have known would result in snow blanketing the plaintiff’s vehicle, stating:

[19]        In the case at bar, the highway was blanketed with a large amount of snow that was clearly visible for all drivers to see, which made driving a treacherous task. Despite the poor road and weather conditions, the driver of the SUV blew by Mr. Link at a high speed in the left lane. Unlike the situation in Lang, where Hood J. found that the spray was unanticipated and a surprise to the overtaking driver, the driver of the SUV, given the conditions, would have - or should have - appreciated the likelihood that the act of passing at high speed and returning to the slow lane immediately in front of the overtaken vehicle would result in a significant amount of snow being thrown onto the overtaken vehicle causing a total loss of visibility. This risk could have been avoided by the driver of the SUV by passing at a lower rate of speed and not returning to the slow lane abruptly.
In finding that the defendant driver fell short of the statutory standard outlined in the above provisions of the Motor Vehicle Act, Mr. Justice Ball stated:

[20]        There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated. That driver was in clear breach of the standard of care.
[21]        Mr. Link did not voluntarily accept the risk that another driver on the highway would fail to pass him in safety. As for causation, I am satisfied that, as in Rowe, the unsafe pass “precipitated a chain of events” which culminated in Mr. Link’s accident. The driver of the SUV “roared right by” Mr. Link and “a big rooster tail of snow completed covered [the] windshield”. This caused Mr. Link to lose complete visibility, and he tapped his brakes because he could not see. The Link Vehicle then spun out and hit the median. I find, in the circumstances, that the driver of the SUV caused the accident.
[22]        No contributory negligence has been proven by the defendant. Mr. Link was in a smaller vehicle competing with bad weather and snow conditions. I find that Mr. Link was driving in a safe manner at low speed consistent with the difficult conditions. I also find that Mr. Link’s actions in tapping his brakes was a reasonable reaction to losing total forward visibility.
        In the result I am satisfied that Mr. Link has proven on a balance of probabilities that the driver of the SUV was negligent in all of the circumstances of this case.

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Thursday, September 18, 2014

No 'Failure to Mitigate' Reductions for Refusal of Medical Marijuana

In the March 2014 decision of Mr. Justice Baird in Glesby v. MacMillian,2014 BCSC 334, the Court found that the plaintiff could not be penalized on the defendant’s argued grounds of failure to mitigate, due to her refusal to use medical marijuana .

At the time of the accident, the plaintiff was a 24 year old student teacher. She was a fully-belted back seat passenger in a vehicle that was struck from behind while stopped at a red light. The collision resulted in pain and discomfort in the plaintiff’s neck, shoulder, and upper back, which remained unresolved four years after the accident. The plaintiff claimed damages for losses she had allegedly incurred as a result of the April 2009 motor vehicle accident.

Among other submissions at trial, the defendant argued that the plaintiff had failed to mitigate her losses by her refusal to follow various aspects of medical advice given to her by a number of physicians, including the use of medical marijuana to manage her pain. The Court noted:

[47]        Dr. Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr. Kleinman’s, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts.
While the Court did find a number of the plaintiff’s refusals of other treatment recommendations to be unreasonable and reduced damages accordingly, Mr. Justice Baird stated the following, with regard to the advised medical marijuana use and the plaintiff’s subjective beliefs:

[69]        I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.

This is not to say that subjective belief contrary to the form or frequency of an advised therapy can always (or even often) cause a plaintiff to avoid penalty, where mitigation of damages is in issue. The question of “reasonableness” of refusal remains one of fact; it is for a judge or jury to consider all the circumstances of a plaintiff’s refusal to follow medical advice. The rule in Janiak v. Ippolito [1985] 1 SCR 146, which states that when assessing damages, the courts must consider what a reasonable person would do in order to minimize losses resulting from a given injury, is not a hard and fast rule. There are limits to a plaintiff’s duty to mitigate, and this case has established that a physician’s recommendation of medical marijuana falls outside the reasonable expectations of a plaintiff who holds beliefs contrary such an endorsement.

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Tuesday, September 16, 2014

Non-Pecuniary Damages Reduced for Failure to Mitigate

The BC Supreme Court recently released its reasons for judgment, in the case of Rasmussen v. Blower 2014 BCSC 1697, where the Court ultimately reduced the plaintiff’s award for non-pecuniary damages by 20% for failure to mitigate his damages.

In this case, the plaintiff, Christopher Rasmussen, was a passenger in a stopped vehicle which suffered a rear end hit by defendant, Todd Blower’s, car. Liability was admitted.

Mr. Rasmussen suffered soft tissue injuries, which left him with neck and back pain, knee pain, left leg numbness and headaches. These injuries, along with a number of additional damages, including pain and suffering and loss of enjoyment of life in the future, were pleaded by the plaintiff. The defendant responded, pleading in part that, by the plaintiff’s failure to follow medical advice and recommended courses of treatment, the plaintiff failed to mitigate his damages. Particularly with respect to his consumption of alcohol while taking prescribed medications, the defendant submitted that the plaintiff’s non-pecuniary award should be reduced by 10-20% to account for his failure to follow medical advice, or to take steps to reduce or alleviate his own injuries, and/or the accompanying symptoms of pain he had reported. The Court ultimately agreed with the defendant, reducing the plaintiff’s non-pecuniary damages by 20%.

In his reasons, Mr. Justice Funt pointed to the duty of an injured party, to mitigate their damages, stating:

[38]         The law does not encourage indolence.  An injured party has a duty to mitigate:  see
Graham v.
Rogers, 2001 BCCA 432 (CanLII), 2001 BCCA 432, at para. 35.  In this type of case, the plaintiff must seek and follow the advice of his or her physician with the goal of overall improvement and recovery.

In rejecting the plaintiff’s submissions as to why medical advice was not followed, the Court went on to comment:

[40]        The Court rejects the plaintiff’s reasons for failure to mitigate.  Realistically speaking, perseverance is often the key to allowing medical treatments a chance to work.  During the approximately three months for which the plaintiff claims past wage loss, he could have attended physiotherapy and massage sessions.  The Court is satisfied that he had sufficient funds or, as noted by defence counsel, he could have claimed Part 7 benefits (Insurance (Vehicle) Regulation, B.C. Reg. 447/83, Part 7).

Finally, the court reiterated the requirements to be met, for a defendant to prove that a plaintiff could have avoided their loss (either in whole or in part), affirming that the onus was met in this case, stating:

[41]        The defendant did not argue that, if the plaintiff had followed the medical advice he received, the plaintiff’s injuries would have resolved within “6 months to a year or so”:  Price, supra.  The defendant stated that the plaintiff’s non-pecuniary award should be reduced by 10%-20% in order to take into account the plaintiff’s failure to mitigate.  The defendant has satisfied the two-pronged test in Chiu v
. Chiu, 2002 BCCA 618 (CanLII), 2002 BCCA 618, set forth by the late Mr. Justice Low, writing for our Court of Appeal:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.

Ultimately, Mr. Justice Funt concluded:

[42]        The Court will reduce the non-pecuniary award it would otherwise have ordered by 20%.  The plaintiff failed to mitigate by not following the reasonable treatments recommended to him.  He also consumed alcohol in quantity which, pragmatically viewed, probably reduced or nullified the effectiveness of the prescribed medications.

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Wednesday, September 10, 2014

Airline Incident Reports Not Subject to Litigation Privilege

In Smith v. Air Canada 2014 BCSC 1648, on appeal from an order of a Master of the Supreme Court of British Columbia, the defendant, Air Canada sought to overturn an order that the company disclose an incident report prepared by Air Canada personnel. The report was prepared following an incident during the boarding of a flight scheduled to depart from Vancouver to Toronto.

The plaintiff, Ms. Smith, suffered damages when a passenger failed to store a bag securely in the overhead compartment allowing it to fall on Ms. Smith. An incident report was prepared by an Air Canada employee, and the Court was to consider whether this document properly fell within the scope of documents subject to privilege.

The legal principles regarding the claim of privilege over documents are well-established, and were reiterated by the Court.

 6     In respect of the production of documents over which privilege is claimed the legal principles to be applied on such an application are succinctly reviewed by Master Bouck in Beer v. Nickerson, 2010 BCSC 718, paras. 17-18:
            [17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, [2007 BCSC 1392]. Those principles are as follows:

1.         The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.         The test for considering whether litigation privilege is established is two-fold:
(a)       Was litigation a reasonable prospect at the time the document in dispute was created?
(b)       If so, was the dominant purpose of the document's creation for use in litigation? (commonly known as the "dominant purpose" test.)

3.         Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.         However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.


6.         It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

            [18] To these principles I would add that the dominant purpose test is consistent with "the more contemporary trend favouring increased disclosure": Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

Applying these principles to the order under review, the Court found that Air Canada did not clear the first part of the established test. Despite affidavits asserting that the dominant purpose of the incident report was to provide information regarding the event to Air Canada’s legal department, this did not require consideration, as the Court found that litigation was not a reasonable prospect at the time the incident report was created, in the first place.

24     As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.

25     As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.

26     Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.

27     As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master's view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.

Air Canada further suggested that the Master had not properly considered that the company was particularly vulnerable to liability claims arising from incidents on board their aircrafts, and that this fact further demonstrates that incident reports are created in reasonable contemplation of litigation. The Court dismissed this assertion, pointing out that it is only at the time that a claim becomes a matter of litigation that the incident report is forwarded to Air Canada’s legal counsel.

30     I do not accept that the document is privileged because of the vulnerability of Air Canada to litigation claims from its passengers. Air Canada has a specific department to deal with claims, of which Mr. Gilchrist is the manager. Despite the presence of the claims department within the law department of Air Canada, it is clear that the claims department deals with claims until the matter becomes a matter of litigation. It is then that the incident report is forwarded to Air Canada's legal counsel. This too does not establish that the document was prepared in contemplation of litigation.

Given the Court’s finding that the incident report had not been created in reasonable contemplation of litigation, and thus that the Master’s view was not clearly wrong, the application for review of the Master’s decision was dismissed, and the document was to be produced to Ms. Smith and her counsel.

Richard Parsons and Nick Peterson of Collette Parsons Harris acted for the Plaintiff.

The trial Judge's full reasons can be viewed at the link provided above.

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Tuesday, September 9, 2014

Plaintiff Awarded Over $800,000 for Chronic Pain and Headaches Following Crash

In Forder v. Linde 2014 BCSC 1600, the plaintiff, Ms. Forder, suffered chronic pain and  headaches causing a major depressive disorder, following a rear end motor vehicle accident. The plaintiff was awarded over $800,000 as follows:

General Damages:                        $100,000

Past Lost Earning Capacity:          $145,577

Future Loss of Earning Capacity:  $325,000

Future Cost of Care:                      $230,000

Special Damages:                         $35,023.76

TOTAL:                                          $835,600.76

At the time of the incident, the plaintiff was a 47 year-old special education assistant, who also regularly carried out respite care for families with special needs children.

The motor vehicle accident left the plaintiff suffering chronic pain and headaches and effectively ended her work as a special education assistant. The award reflects the Court’s view that based on expert evidence demonstrating the potential for rehabilitative success following a multidisciplinary pain program, it is not unreasonable to expect that Ms. Forder may acquire more respite care clients in the long term.

795     Mr. Struthers extrapolation of future earnings for Ms. Forder if she never worked again was $447,336, and if I make an allowance for lost respite care (on my basis of $5,000 per year) that is an approximate amount of $57,360 per year or lost future earnings of $502,036.

796     However, Dr.'s Wild, Anderson, Underwood and O'Shaughnessy all spoke favourably of utilizing a multidisciplinary pain clinic to assist Ms. Forder resolving her anxiety and depression over her chronic pain and headaches.

    Ms. Forder was basically bed ridden for some 18 months. Equally, clearly as one sifts through the reports and sees the improvement after 18 months and the plain need for Ms. Forder to become more active but at the same time have appropriate medical care without the worry of a lawsuit impinging on her life, there is in my view a reasonable medical likelihood of Ms. Forder being capable of sedentary employment. She has continued with one of her respite care clients. It is not unreasonable to forecast that Ms. Forder, with her skills and empathy for special needs children will be able in the long term to acquire some more clients.
This potential was also reflected in the award for future cost of care, to account for costs related to multidisciplinary pain care and management.

805     I had some difficulty with the defendant's position when they were in agreement that there was a need for a multidisciplinary pain clinic, ongoing home assistance, but only for some two years, payment for Botox treatment even perhaps to age 75 ($53,000), the need for cognitive behavioural treatment, and not the ten sessions that were purportedly done with Dr. M. Anderson, but with 30 sessions recommended by Dr. S. Anderson ($5,250).

     And given the need for medication and psychological intervention for the major depressive disorder based on Dr. O'Shaughnessy and Dr. Wild's opinion, the defendant's suggestion of future cost of care be limited to $35,000 - $45,000 does not fall within their own parameters.

808     In my view, the pain clinic, the medications (reduced as plaintiff's counsel suggested for the Gabapentin to $5,540); psychological assessment; CBT; ongoing psychological assistance; occupational therapy; physiotherapy; water therapy; allowance for homemaking and pool/gym membership; Nordic poles; yoga, kinesiology; home aids; and vocational assessment are all appropriate.

809     In the long term, some of these modalities may prove useful, some may not, and I conclude that $230,000 is an appropriate award.

Richard Parsons and Nick Peterson of Collette Parsons Harris acted for the Plaintiff. 

The trial Judge's full reasons can be viewed at the link provided above.

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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.

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