ICBC Effort To Remove Case From Supreme Court Fails

While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.

Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.

In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages.  After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.

The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction.  In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:

[12]         The plaintiff filed an affidavit sworn December 13, 2019. In that affidavit, he deposes that, as a result of the accident, he continues to experience symptoms in his back, shoulders and right hip, and has difficulty sleeping. He complains of pain in his lower back and shoulders when not active, and of pain lasting two to three days if he engages in activities. He further deposed to having difficulty falling asleep and of waking in the night because of lower back pain. He further deposed to attending massage therapy on a more or less weekly basis and that he intends to seek chiropractic treatments.

[13]         In approaching this mater, I am particularly mindful of the caution expressed by Justice McEwan in Kooner v. Singh, 2011 BCSC 1384, at paras. 3 and 6. There, he stated it is only in the clearest of cases that a matter should be transferred to the Provincial Court. It is only where there is no possibility of a damage award exceeding the Small Claims’ limit that a matter should be transferred to the Provincial Court:

[3]        I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[6]        I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[14]         The plaintiff is relatively young. He apparently had no medical issues prior to the accident. He apparently suffered soft tissue injuries in the accident to the neck, back and shoulders, and continues to suffer from what may be chronic pain which may encumber him for the rest of his life. He also has ongoing sleep difficulties and his injuries have affected his enjoyment of recreational activities. The injuries suffered by the plaintiff and the effects of those injuries are somewhat similar to what is described in Poulin and Carson, where the plaintiffs were awarded general damages of considerably in excess of $35,000.

[15]         In my view, on the basis of the evidence before me and the authorities, there is a possibility that the plaintiff may recover damages at trial in excess of $35,000. Accordingly, this matter should not be transferred to the Provincial Court, and the application is dismissed.

Rec Legaue Hockey Bodycheck Results in $702,551 Damage Award

Today’s guest post comes from Erik Magraken BC Injury and ICBC Claims Blog

Although infrequent, Canadian courts have occasionally imposed civil and even criminal liability following injuries at sporting events.  The latest such case was published this week out of Ontario.

In the recent case (Casterton v. MacIsaac) the Plaintiff successfully sued the Defendant after suffering injuries in a hockey game.

The parties were playing in a recreational senior hockey league.  It was a no contact league though incidental contact was part of the game.  The plaintiff accepted that accidental contact was part of the risk of playing.  Blindside hits, however, were absolutely prohibited and the Court accepted that such hits were not consented to either expressly or implicitly as part of playing.

The Defendant collided with the Plaintiff resulting in fairly severe injury.  He was initially charged criminally with assault for the incident.  He was convicted but his conviction was overturned on appeal and the charge was ultimately stayed.

In the civil lawsuit the Court heard conflicting evidence but ultimately found that the Defendant was liable as the contact was from a prohibited blindside hit.  The collision caused the Plaintiff to suffer a concussion, two broken teeth and various cuts.  Damages of over $700,000 were assessed comprised of $63,000 in general damages, $199,512 in past lost income, and $440,039 in future income loss.

In imposing liability from the body check Justice Sally Gomery made the following findings and provided the below reasons:

[111]      The League is a recreational, non-contact league.  Every player who testified nevertheless recognized that hockey is a fast-paced sport where some degree of body contact is inevitable.  Accidental injury is always a risk. Various players talked about past injuries they got from loose pucks. Players in the League, including Casterton, signed a waiver releasing the league from any damages as a result of hockey injuries.

[112]      Injury can be caused by contact with other players. Body checking is punishable as a major penalty. The very existence of this penalty shows that body checking – just like conduct that may attract a minor penalty, such as tripping and hooking – may occur. It is sanctionable, but not completely unexpected conduct.

[113]      In sum, players can expect that they may be accidentally injured during a game, even a game in a recreational, non-contact league. They accept this risk when they play.

[114]      Each player also testified, however, that blindside hits – especially hits to the head – are absolutely prohibited. They have no place in recreational play, or in any hockey game.

[120]      I have already rejected some of Desjardins’ evidence; notably, his testimony that MacIsaac was skating parallel to the back boards when the collision occurred.  On the other hand, his recollection about MacIsaac’s body posture just before the collision has been consistent from the time it occurred.  It was the reason why he gave MacIsaac a ten-minute major misconduct penalty.

[121]      Desjardins played in competitive and semi-professional leagues before becoming a referee in 2010. He had officiated about 600 games by March 2012.  He explained why this incident stood out in his memory.  He had no bias towards or against either team or any particular player. He had simply never seen “such an act of violence” in a hockey game; as both a referee and as a player. He was fifteen to twenty feet away from the point of impact, and nothing obstructed his view. In his opinion, MacIsaac deliberately attempted to injure Casterton.

[122]      I conclude that MacIsaac intentionally skated at high speed towards Casterton from an angle where his approach could not be seen. He positioned his arms and drew up his body in such a way as to maximize bodily contact, causing a collision between MacIsaac’s shoulder and forearms and the lower half of Casterton’s face. Casterton did not anticipate the check and, as such, made no moves to protect himself or attempt to avoid the collision. Each player admitted that, if Casterton’s theory of how the collision occurred were accepted, this was a blindside hit.

[123]      Based on the evidence of Winton and Desjardins about MacIsaac’s body posture, I find that MacIsaac either deliberately attempted to injure Casterton or was reckless about the possibility that he would do so.  But even if I concluded that the hit was neither intentional nor reckless, applying the test in Kempf, MacIsaac would be liable for Casterton’s injuries because he failed to meet the standard of care applicable to a hockey player in the circumstances. Every player who testified stated that a blindside hit to the face is and was outside the bounds of fair play. 

[124]      MacIsaac is therefore liable for the injuries that Casterton suffered during the March 15, 2012 game. 

Canada: What To Know About Left-Turn Accidents

Article by Gluckstein Personal Injury Lawyers

What to know about left-turn accidents

Traffic accidents always come down to a blame game and the person making the left turn is often in the wrong. About half of all crashes at Canadian intersections involved a vehicle that was turning left, according to a 2007 joint study by the Traffic Injury Research Foundation and the Insurance Institute for Highway Safety.

With so many claims stemming from those incidents, the Insurance Bureau of Canada considers all left turns into traffic that lead to an accident, as against insurance company policy.

Before trying to beat the light and making an ill-advised left turn, here are some things drivers should consider:

Different types of insurance

Insurance companies always deem someone at fault in cases of accidents. The fault could be partial or full depending on the circumstances. Individuals deal with their own insurance companies, regardless of who caused the accident. No-fault insurance allows a person to receive part or full coverage by their company regardless of who caused the accident. They can receive medical and other benefits without having to track down the other driver and take them to court. They are also eligible even if they are deemed to have caused the accident.

Proving who’s at fault

Insurance companies determine fault by analyzing accident reports. Therefore, if the other driver committed a traffic violation as well, such as speeding or running a red light, there is room for adjustment. Adjusters can “split the fault” in these situations, instead of the full liability for the driver turning left.

As a driver, proving what happened at the time of the accident is crucial in determining your eligibility for an insurance claim. First-hand witness accounts are helpful in constructing the scene before and after the accident.

An impartial witness is ideal to corroborate your story, especially if you claim that the other driver was at fault.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: Mondaq

Non Disclosed Defence Report Thwarts Request for Second Independent Medical Examination

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were recently given by the BC Supreme Court, New Westminster Registry, dismissing a defence request for an independent medical examination of a Plaintiff where the Plaintiff already saw an expert of the Defendants choosing but the Defendants have yet to produce a report from that expert.

In the recent case (Khan v. Cabrera) the Plaintiff was involved in a collision and sued for damages.   In the course of the litigation the Plaintiff consented to be explained by a neurologist of the Defendant’s choosing and “that report has not yet been disclosed by the defence to the plaintiff“.

The Defendant requested that the Plaintiff also be assessed by an orthopaedic surgeon arguing that such an exam is necessary to provide an opinion about a pre-accident orthopaedic injury the plaintiff had sustained and also to address collision related injuries.

The Court dismissed the application in large part because it was unclear what opinion the Defendants would already have the benefit of from the first appointment.  In short the litigation ‘playing field’ may already be even.  In dismissing the application Master Keighley provided the following reasons:

[14] Now, as I have indicated, the report of the neurologist prepared at the behest of the defence has not yet been disclosed. I am of course aware of the decision of the Court of Appeal in Tran v. Abbott, 2018 BCCA 365, and that case is helpful in emphasizing the central purpose of the rule, which is to place the parties as close as possible to an equal position with respect to medical evidence to be produced at trial. The case is important, to my mind, in making it clear that there is no longer a requirement to show special circumstances to justify the commissioning of a second report.

[15] The Court has to be satisfied, however, that there is evidence to suggest that the preparation of a further report is necessary to achieve that equality. There are a number of ways in which that evidence might be adduced. Sometimes the applicant may refer to a medical report produced by, in these circumstances, the plaintiff indicating that the party, for example, preparing the report lacked the expertise to deal with a particular issue and suggests that a reference be made to another specialist to resolve that aspect of the plaintiff’s condition.

[16] Sometimes the court has before it an affidavit from a specialist with whom the appointment is sought indicating that an examination is necessary to deal with issues within that expert’s expertise. I do not have either of those here. As was the case with my colleague Master Muir in Gray-Verboonen v. Mandurah, 2019 BCSC 1697, this is, as she noted in the case before her, one of those cases where the defence has the benefit of a recent assessment of the plaintiff but neither the plaintiff nor the Court has the benefit of such.

[17] I am simply not satisfied in this case on the basis of the evidence before me that a referral to an orthopedic surgeon is necessary to achieve the desired equality between the parties. It may well be that (although I appreciate the timeline is now somewhat shortened, not only with respect to the 84-day deadline but also the January trial), if the defence instructions change and the neurologist’s report is produced before the deadline, it may indicates that perhaps with other evidence that a referral should be made. But I am not satisfied on the basis of the evidence before me today that the applications should succeed. The relief sought in paragraphs 1 and 2 of the Notice of Application is, accordingly, dismissed.

To my knowledge, this judgement is not reported but as always I am happy to share a copy with anyone that contacts me and requests the reasons.

bc injury law, Defence Medical Exam, independent medical exam, Khan v. Cabrera, Master Keighley, multiple defence medical exams

Motorist Ordered To Pay $34,980 in Damages Following “Road Rage Incident”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.

In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel.   The Plaintiff was concerned that the Defendant was not paying adequate attention.  The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant.  The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.

The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages.  Mr. Justice Walker provided the following findings regarding liability:

[27]         I accept that Mr. Henderson believes he was calm and non-threatening when he approached Ms. McGregor’s vehicle. I also find that Ms. McGregor was surprised to see Mr. Henderson walking toward her vehicle.

[28]         That said, Ms. McGregor committed an unprovoked assault and battery on Mr. Henderson (I will refer to both collectively as an assault). She struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.

[29]         Mr. Henderson conceded in submissions that with the benefit of hindsight he should not have approached Ms. McGregor’s vehicle. However, that does not provide Ms. McGregor with a defence.

[30]         Her submission that she acted in self-defence is without merit. She has not met the onus to establish self-defence: Mann v. Balaban, [1970] S.C.R. 74 at 87. She has not established that she perceived an imminent attack. Without provocation, Ms. McGregor hit and grabbed Mr. Henderson’s face, scratching his skin with such force to cause lacerations, bleeding, bruising, and swelling.

[31]         Even if Ms. McGregor felt threatened and perceived an imminent attack, which I do not accept she did, in exercising her right of self-defence, she must use only such force as on reasonable grounds she believes is necessary for her defence. The nature of the injuries suffered is not necessarily indicative of whether the force was reasonable. The issue is informed by the facts and circumstances of each case, including the nature and seriousness of the threatened attack. Here, the force Ms. McGregor used was not reasonable in the circumstances: Buchy v. Villars, 2008 BCSC 385 at para. 112, aff’d 2009 BCCA 519; Provencher v. St. Paul’s Hospital, 2015 BCSC 916 at paras. 45-46.

Assault, Battery, bc injury law, Eye Injury, facial cuts, facial lacerations, Henderson v. McGregor, Mr. Justice Walker, Road Rage

ICBC Expert Opinion “Of Little To No Assistance To the Court”

Guest post was written by ERIK MAGRAKEN on .

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding that an ICBC hired expert witness’ opinion was “of little to no assistance to the Court“.

In today’s case (Tench v. Van Bugnum) the Plaintiff was injured in two collisions that the Defendants admitted fault for.  The Plaintiff presented evidence that the collisions resulted in chronic Thoracic Outlet Syndrome (“TOS”) resulting in significant impairment.  The Defendant’s insurer, ICBC, hired a doctor who did not examine the Plaintiff and provided an opinion rejecting the diagnosis.  In dismissing this opinion as being of ‘little to no assistance‘ Madam Justice Fleming provided the following reasons:

[150]     In this case, the conflict in the expert evidence regarding the diagnosis of TOS is easily resolved based on the much superior expertise and experience of Drs. Salvian and Caillier in diagnosing and treating TOS. Further, the strength of Dr. Karim’s opinion is significantly undermined by the fact that he did not examine Ms. Tench. There is no suggestion here that her TOS symptoms are susceptible to proper assessment by objective measures alone. Drs. Salvian and Caillier’s evidence made clear that their examinations and clinical testing of Ms. Tench played an important role in their diagnoses of her TOS. In any event, Dr. Karim’s opinion ultimately is of little to no assistance to the court, because it offers no explanation, prediction or recommendations with respect to any of Ms. Tench’s ongoing and significant symptoms.

[151]     Therefore, I accept the entirely consistent expert opinions of Drs. Salvian and Caillier, along with their examination findings. I also largely accept the opinions and findings of Ms. Black regarding Ms. Tench’s functional capacity prior to the second accident.

In assessing non-pecuniary damages at $120,ooo the Court made the below findings and provided these further reasons:

[153]     Without limiting the factual findings that flow from this acceptance, my findings include:

1.     The first accident caused injuries to the soft tissues of Ms. Tench’s neck, shoulder girdle and back as described by Dr. Caillier, resulting in acute and significant pain in those areas, as well as neurologic TOS, likely the result of ongoing spasm and tightness in the scalene muscles. Her condition involves significant sensory symptoms including numbness and tingling and some pain in her arms and hands. Her pain and TOS symptoms improved somewhat but were chronic by the time of the second accident.

2.     The first accident also caused the emotional and psychological symptoms Ms. Tench has experienced since then. In other words, I reject the defendants’ assertion her psychological complaints are not causally linked to the accident and are perhaps attributable to other potential causes, namely a genetic predisposition. I note that in cross-examination Ms. Tench was asked to confirm that two particular family members suffer from anxiety or depression, which she did.

Regarding factual causation, Ms. Tench is required to prove on a balance of probabilities that the defendants’ negligence was not the sole or predominant cause, but a cause of her injuries and loss, applying the “but-for” test: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13–17It is well-established and must be remembered that cause in fact is determined in a “robust common sense fashion”. Scientific proof is not required. Inferences drawn from proven facts may suffice: Clements v. Clements, 2012 SCC 32 at para. 9; and Athey at para. 16.

Applying the but-for test, the opinion evidence of Dr. Caillier and the fact evidence of Mr. Smith, Ms. Buhler and Ms. Tench amply establish that the emotional and psychological symptoms she has experienced after the first and second accidents were caused by them. The causal mechanisms likely included the impact of the accidents themselves, her ongoing pain and sensory symptoms and their consequences for her, including poor sleep.

3.     Ms. Tench’s physical symptoms interfered with her ability to work at Rona, prevented her from continuing to work at Starbucks, and significantly affected how she carried out her ESL teaching and TA responsibilities. Her symptoms also undermined her participation in graduate school. Whether or not the grades she obtained were significantly lower than they would have been absent her injuries, it is clear her pain and TOS symptoms prevented her from focusing, concentrating, reading and typing for sustained periods, undermining her ability to keep up with preparation and course work.

4.     For the most part, I accept Ms. Black’s opinion about Ms. Tench’s functional vocational and non-vocational capacity shortly before the second accident. Based the fact evidence, I find Ms. Tench could not have worked more than she was at that time or by the time of the trial. It is clear that working as much as she did left her with little energy for anything else including her marriage and her relationships with family and friends. In other words, she was essentially exhausting herself.

5.     Accepting Ms. Tench’s TOS symptoms were somewhat, but not significantly better before the second accident, I also accept that she had learned to better manage all of her symptoms and was experiencing less emotional distress and preoccupation with her physical condition by then.

6.     Based on the clinical findings of Dr. Salvian and Dr. Caillier, and the evidence of Ms. Tench and Mr. Smith regarding her pain and TOS symptoms since the second accident, I am satisfied it significantly aggravated both conditions and she has not been able to durably perform anything other than light housekeeping, working as much as she has been. Although antidepressant medication has lessened her anxiety and allowed her to feel more calm, she is easily overwhelmed and her outlook is quite pessimistic. Her psychological and emotional symptoms include not just low mood but also reactivity.

7.     Given the aggravation of her chronic pain condition and chronic TOS caused by the second accident, and accepting Ms. Tench was struggling to manage the demands of working part-time at three ESL positions while completing three prerequisite courses at the time of the trial, I find that her functional capacity deteriorated after the second accident.

8.     Botox injections provide temporary relief from some of her neck and TOS symptoms but limited improvement in function. Although she is better able to carry light objects without the same fear of dropping them, she must still avoid aggravating her condition by engaging in the problematic activities and postures identified by Dr. Salvian, Dr. Caillier and Ms. Black.

9.     Ms. Tench’s prognosis is poor. Her chronic myofascial pain syndrome and chronic TOS are likely permanent. Accepting it is probable she will improve to where she was before the second accident, this outcome would still leave her with significant ongoing pain in her neck and shoulders, that will fluctuate in intensity based on her activities, and intermittent but significant symptoms of numbness and tingling in her arms and hands, along with some pain. She also faces an increased risk her conditions will worsen, and is vulnerable in particular to an aggravation of her TOS caused by further injury to her neck or even ongoing scalene spasm as explained by Dr. Salvian. I also accept however that implementing many of the recommendations of Dr. Salvian, Dr. Caillier and Ms. Black, and working less than full-time will allow Ms. Tench to better manage her conditions.

[165]     Once a thriving, dynamic, energetic young woman with very bright future, Ms. Tench has been left struggling to manage chronic, significant pain and TOS symptoms that have cast a shadow over all aspects of her life. Since the accidents she has worked and studied in significant pain, discomfort and distress. Coping with her physical symptoms and the demands of work and school have left her with little energy for anything else.

[166]     Accepting her condition played some role in her decision not to pursue a PhD, she lost the chance to fulfill her dream of a richly intellectual work life.

[167]     Her relationship with Mr. Smith has been deeply affected. Even physical affection causes her difficulty. She fears being unable to care for the children they hope to have in the future. No longer able to contribute much at home, Ms. Tench has lost the sense of fulfillment she derived from cooking, baking, decorating and entertaining, and maintaining her own fastidious standards. She is also unable to participate meaningfully in almost all of her other previous hobbies and activities. Close to her family, extremely social and very active in her church before the accidents, Ms. Tench is now quite isolated.

[168]     Sadly, her pain and TOS conditions are permanent. Although Botox injections offers serial temporary relief of some of her symptoms, they are not a cure. The prospect of some improvement although probable is less than certain. She could improve to the point she reached prior to the second accident, but she also faces the risk of worsening symptoms. Better management of pain is the most realistic scenario.

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