No – You Can’t Call Evidence Suggesting Your Client is a Criminal Without Instructions

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.

In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.

Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.

The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.

In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).

In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.

BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.

In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.

The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages.  The BC Court of Appeal disagreed.  In upholding the trial result the Court provided the following reasons:

[54]         Failure to mitigate is a positive allegation that should be pleaded and argued at trial:  Hosking v. Mahoney, 2010 BCCA 465 at para. 34.  Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55]         In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56]         The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate.  A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57]         In my view, the respondents’ pleading is clearly not deficient.  In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury.  Here the pleading is explicit.

[58]         Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis.  These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59]         The issue of mitigation was both specifically pleaded and extensively explored at trial.  Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment.  Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath.  The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60]         In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages.  I see no merit to this ground of appeal.

 

Lawyer: Judge awards largest punitive damage award in pedestrian crash

By Linda Givetash and Beth Leighton

THE CANADIAN PRESS

VANCOUVER _ A lawyer says his client has been awarded the largest amount ever by a Canadian court for punitive damages linked to a motor vehicle accident.

Veronica Howell was hit by a pickup truck while she was jay-walking across a Vancouver street in January 2014. She suffered a brain injury and other injuries that the B.C. Supreme Court says “changed her life dramatically.”

Howell, who was 22 at the time of the accident, was awarded $100,000 for punitive damages in addition to more than $2 million for general damages and loss of income.

Howell’s lawyer, John Rice, said the punitive award is the largest he could find involving a vehicle accident.

“I couldn’t find a single case in the hit-and-run context,” he said in an interview Tuesday.  “There had been drunk-driving contexts and others, and punitive damages awards in the tens of thousands of dollars. I think I saw one for $35,000, but this is drastically higher than any one in the past.”

The court found the pickup driver, who was suspended from driving, was on the wrong side of the road when he passed stopped traffic and struck Howell.

The court ruling said Leon Machi drove off afterwards and failed to co-operate with Vancouver police and the Insurance Corporation of British Columbia during the investigation. Machi claimed he was not the driver and someone named Michael had been using his truck.

Justice Heather MacNaughton ruled the evidence Machi provided under oath was not credible.

“Mr. Machi’s actions are worthy of denunciation and retribution,” she wrote in her decision, dated Oct. 12.

The punitive damages take into account that he didn’t stop after the collision and had “shown complete disregard for the suspensions of his driver’s licence,” MacNaughton said.

Rice said the judgment sends a message to the public that reckless behaviour and contempt of the law will not be tolerated.

Howell was found to be 25 per cent responsible for the accident, which reduced the total damages she was awarded.

The court’s decision noted that Machi filed for bankruptcy before the trial started.

Rice said it’s unclear how much Howell will successfully collect.

“The hope is that at least the punitive damages award would survive any bankruptcy declaration and that she would remain a creditor for that punitive damages award.”

 

$220,000 Non-Pecuniary Assessment for Leg Amputation and Chronic Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a leg amputation caused by a vehicle collision.

In today’s case (Bye v. Nelson) the plaintiff was operating a dirt bike which was involved in a collision with an ATV operated by the Defendant.  The collisions caused severe injuries including a left leg amputation.

In assessing non-pecuniary damages at $220,000 Madam Justice Choi provided the following reasons:

[3]             …Not in dispute is that Mr. Bye’s dirt bike and Mr. Newman’s ATV collided near a curve in the road. Both vehicles were damaged, and Mr. Bye was left with a number of injuries including a fracture to his neck and multiple fractures to his legs. Although Mr. Bye was rushed to the hospital, his injuries required a through-knee amputation of much of his left leg.

[93]         Mr. Bye is a young man. He was 35 years old at trial and 31 at the time of the accident. He was an active man who enjoyed various recreational pursuits. He had been employed by Teck Metals as a carpenter commencing February 2010. It was a job he loved, which paid him handsomely.

[94]         The injuries from the accident have changed his life dramatically forever. He now suffers from daily pain and fatigue as a result of the amputation and is permanently disabled from returning to carpentry work and to many of his recreational activities. He testified that, before the accident, he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming, and that his injuries have either cut off, or severely limited his enjoyment of these.

[95]         Additionally, Mr. Bye is now a father, with his son born during the litigation, in 2016. While he is still able to play with and care for his son, many of these interactions are made more difficult by his injury. He testified to the difficulties of lowering himself to the floor to spend time with his son…

[102]      Mr. Bye has been dealing with his injuries since he was 31. He will continue to face difficulties for the rest of his life. Considering all the evidence, the Stapley factors, and case law submitted by the parties, I conclude an award of $220,000 is fair and appropriate in all the circumstances.