Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Source: Erik Magraken BC Injury and ICBC Claims Blog

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, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for.  In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis.  In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

[32]         Having said that, I find it difficult to ascribe any weight to Dr. Boyle’s opinion. His opinions as to the “greater than 50%” likelihoods of certain outcomes, as described above, were stated in a conclusory manner. Rule 11-6 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 requires that an expert state the reasons for their opinion, and indeed the letter of instruction from ICBC to Dr. Boyle specifically asked him to provide his reasons. In contrast to Dr. Hershler, who explicitly stated in his October 2015 report that his opinion was based on his experience with patient outcomes, and the fact that recovery can be prolonged when there have been multiple accidents, Dr. Boyle did not set out what path of reasoning led to the opinions he expresses. His report stated a number of positive and negative prognostic factors, but he did not weigh or analyze them in any fashion.

[33]         If Dr. Boyle’s unstated reasoning behind his opinions was simply that there were no objective signs of pathology, then his failure to acknowledge the subjective nature of pain and the possibility that Ms. Soltan may have found her pain levels intolerable, would mark his report as a work of advocacy. So too would his implication that a prognosis for probable full resolution of soft tissue symptoms may be based solely on objective criteria. The function of an expert witness is to assist the court, not to take sides. To demonstrate fairness and balance, Dr. Boyle’s acknowledgement of the potential for subjective pain being limiting and disabling, even in the absence of objective signs, ought to have been stated frankly in his report and not left to be ferreted out in cross-examination.

[34]         I also note that Dr. Boyle did not state in his report that Ms. Soltan’s decision to take time off work, commencing in February 2017, would not have been a reasonable approach to managing her symptoms and attempting to accelerate the process of recovery.

[35]         For these reasons, I prefer and accept the opinions of Dr. Hershler.

Advocacy in the Guise of Opinion, bc injury law, Mr. Justice Saunders, Soltan v. Glasgow

$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck & Back Injury


Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long-lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

Mr. Justice Baird provided the following reasons:

11]        The plaintiff was assessed by Dr. Jonathan Hawkeswood, physiatrist, on August 13, 2018. He submitted a report that documented the plaintiff’s history of difficulties, his diagnosis, and recommendations for her future heath care. According to him the claimant continues to suffer from post-traumatic myofascial neck pain with large trigger points at the medial trapezial fibres, upper intrascapular pain, likely predominately soft tissue in nature, and headaches related thereto. He noted no pre-accident injuries or illness and concluded that the plaintiff’s current upper body pain and headaches are attributable to the accident. His overall prognosis and expectations were reported as follows:

Based on the duration of symptoms and today’s clinical presentation, a complete resolution of all accident related injuries has a probability of less than 50%. In other words, I expect Ms. Poulin will continue to have neck pain indefinitely. This can be reasonably described as a chronic neck pain issue. Furthermore, it is probable she will experience headaches in association with neck pain on a long term basis.

[12]        Dr. Hawkeswood said that the plaintiff is not disabled from light or moderate duty work because of her injuries. In particular, he did not consider her to be disabled from a career as a physiotherapist but concluded that her work tolerance and productivity will likely be compromised by her injuries. “In the future”, wrote Dr. Hawkeswood, “she may well require consistent sick time or perhaps vacation time dedicated to physical recovery due to her injuries.” He also recommended, if the plaintiff ends up pursuing another career, that she should choose a field that does not require heavy lifting, allows for frequent positional changes, and minimises overhead work.

[13]        The plaintiff was also examined by Brent Armstrong, a functional capacity evaluator. He spent the better part of a day with the plaintiff putting her through various physical tests. He concluded that the plaintiff is competitively employable as both a physiotherapist and a kinesiologist, but he predicted that she will experience exacerbations of neck and upper back pain in the course of her work in either occupation. He predicted that she would need to moderate her pace, take regular breaks, and ask for assistance or accommodations in order to succeed in her daily tasks…

[18]        Here, the plaintiff was injured at a very young age. According to the uncontested medical evidence she will likely continue to suffer indefinitely from pain in her upper back and neck with associated headaches. She has been deprived of the full enjoyment of her physical person in the prime of her life and will suffer from these deficits for many years. This is a significant setback, especially for someone as active as the plaintiff.

[20]        I have concluded that a fair award under this heading is $65,000.

bc injury law, Mr. Justice Baird, Poulin v. Armstrong

$100,000 Non-Pecuniary Assessment for Central Neuropathic Pain With Poor Prognosis

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for central neuropathic pain caused by a vehicle collision.

In today’s case (Laliberte v. Jarma) the Plaintiff was involved in a 2015 vehicle collision.  She was a passenger in a vehicle driven by the Defendant that lost control “went through a fence and over a bump and landed in a field”.  Liability was admitted.

The collision caused various soft tissue injuries resulting in central neuropathic pain.  The prognosis was for symptoms to continue.  These were largely controlled with medication.  In assessing non-pecuniary damages at $100,000 Madam Justice Russell provided the following reasons:

[28]         The parties agree that the plaintiff suffered soft tissue injuries to her lower back, and was diagnosed with CNP. The parties also agree that the plaintiff’s prognosis for this injury is ongoing chronic pain. The plaintiff continues to suffer symptoms daily, although they are now at a tolerable level when the plaintiff is on medication.

[29]          The plaintiff described her pain at trial as “more of an irritation”. She testified that the medication she takes, Topiramate, reduces her pain by 80-90%. However, if she runs out of Topiramate, her serious symptoms immediately resume and she runs the risk of being bedridden with pain.

[30]         The plaintiff’s position is that she will require medication for her symptoms long term and possibly for the rest of her life, and that she faces the possibility of aggravating her injury by engaging in moderate or heavy physical activities regardless of how effective the medication may be.

[31]         The plaintiff’s evidence was that she had suffered some episodes of depression and anxiety as a teen, and had taken some medication for this but had discontinued use prior to the accident. After the accident, the plaintiff was referred to a counsellor by her family physician but did not attend any such counselling sessions or seek any other help concerning her psychological symptoms.

[32]         The plaintiff had no prior history of low back pain. She described suffering low back pain starting the day after the accident. I note that the plaintiff went into labour three days after the accident. Her mother had to help her into the shower and off the toilet, and she could not climb stairs without significant pain. Prior to the accident, the plaintiff enjoyed longboarding, drawing and art, and played basketball in high school. The plaintiff testified that her level of activity has increased since the date of the accident and she is now at a similar level than she was pre-accident, although she engages at a less intense level…

[48]         The plaintiff’s young age, the potentially lifelong duration of her injury and its impact on her physical ability, the severity of her pain before she went on medication, the emotional suffering caused by her aggravated depression, the impact her pain and depression had on her ability to raise and bond with her newborn son in the crucial months immediately following his birth (as well as the increased pain during the birth itself), and the strain her injuries put on her relationship with her parents, all stand in favour of a higher award.

[49]         I consider the loss of her ability to cradle her baby in her arms and to breastfeed without pain to be serious losses.

[50]         Should she wish to have more children, she faces a difficult choice:  to go off her medication for the duration of the pregnancy and suffer serious pain, or to deny herself the opportunity to bear more children. As a corollary of this issue, she must not allow herself to become pregnant again without carefully considering the consequences.

[51]         On the other hand, the plaintiff’s ongoing injury is not a disabling injury because its effects can be managed through the use of medication, the injury is limited to her lower back, and the injury has not caused a substantially material loss or impairment of her life or lifestyle as compared with her level of activity, recreational pursuits and social inclinations before the accident.

[52]         I also find that her injuries have not necessarily caused any marked impairment of her mental abilities  so long as she is on medication controlling her chronic pain, her academic performance does not stand to be affected. These factors favour a more limited award…

[56]         Having regard to the Stapley factors, and the relevant cases cited by the parties, I award the plaintiff $100,000 in non-pecuniary damages.

bc injury law, Central Neuropathic Pain, CNP, Laliberte v. Jarma, Madam Justice Russell

$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision.

In today’s case (Rabiei v. Oster) the Plaintiff was involved in a 2016 collision.  The Defendants accepted fault.  The crash resulted in various soft tissue injuries resulting in chronic pain in the plaintiff’s neck, back and shoulder.  These injuries resulted in some impairment in the Plaintiff’s ability to work and also impacted activities outside work.  Full recovery was not expected.  In assessing non-pecuniary damages at $70, 000 Madam Justice Adair provided the following reasons:

[140]     I find that, as a result of the accident, Ms. Rabiei sustained soft tissue injuries to her neck, upper, mid and lower back.  These diagnoses are made by both Dr. Stewart, and by Dr. Parhar, who saw and examined Ms. Rabiei about a month after the accident.  These are not inconsistent with Dr. Goel’s impression concerning Ms. Rabiei’s primary injury (although he was unable to opine on what the injury was related to).  For a period of some months after the accident, she also suffered from headaches.  Physiotherapy treatments, which began at the end of April and continued until the middle of July 2016, were helpful in addressing her symptoms and improving her ability to function.  Her headaches and lower back symptoms eventually resolved.  However, Ms. Rabiei remained off work for the balance of 2016, because she remained symptomatic in her neck, upper back and left shoulder and (at least in part) because of the advice she received from Dr. Parhar.  The pain symptoms in her neck, upper back and left shoulder, while they improved, have persisted and become chronic.  Although the symptoms are not debilitating, and they come and go, they impair Ms. Rabiei’s ability to function at her pre-accident level, both with respect to her work and her activities outside of work.  Further medical improvement is unlikely, although if Ms. Rabiei follows through on recommendations to work with a kinesiologist on an active rehabilitation program, she has the opportunity to become stronger and more functional…

[148]     Ms. Rabiei is a young woman, just 30.  She has many years ahead of her to live with chronic pain symptoms.  When injured, she was just establishing a new career in B.C.  Her pre-accident work history once she arrived in B.C. showed that she was willing to work hard and was ambitious.  As a result of the injuries she sustained in the accident, she has been and will be working with pain, and is less able to pursue career goals she had for herself.  The satisfaction she can enjoy from her work is diminished.  She is less independent at home. 

[149]     Following the accident, she has been less socially active.  However, beginning with her job at Fresh, her work schedule (where she worked Fridays and weekends) must be considered a factor – she has less time available to go out dancing and to clubs with friends. 

[150]     Ms. Rabiei has given up playing the violin, which is a major loss for her.  It has also affected her social life as she and Mr. Hekmatshoar no longer get together regularly to perform.

[151]      In view of my findings above, and taking into account the factors mentioned in Stapley (including in particular Ms. Rabiei’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $70,000.

Slip and Fall Claim Succeeds After Plaintiff Injured on Wet Boardwalk

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, addressing fault and damages for a fall a Plaintiff sustained while walking on a wet boardwalk.

In today’s case (Owens v. Steveston Waterfront Properties Inc.) the Plaintiff fell and broke her right kneecap in an incident described as follows:

the plaintiff was walking on a part of a boardwalk in Steveson, of which the defendant is the occupier, when she slipped and fell (the “Incident”).  She was walking on the boardwalk after having a meal (a soup and one beer) at the Restaurant.  The plaintiff was 61 years old at the time of the Incident.  She had followed her husband, Mr. Owens, who was also in his sixties, down a ramp with a small incline that was just outside the Restaurant to the boardwalk.  Although the wooden planks of the boardwalk looked dry, she slipped, landing on her knee.  She testified that, had there been a sign warning of a slipping hazard, she would not have tried to walk down the ramp to the boardwalk.

The Court found she fell due to the slipperiness of the boardwalk and that it did not appear wet.  The court noted the Defendant could have placed a warning sign or, at relatively low cost, installed strips to increase the friction for patrons walking on the boardwalk.  In finding the Defendant liable Madam Justice Maisonville provided the following reasons:

[110]     I find that the risk respecting the boardwalk was unreasonable. The defendant has a positive duty to take reasonable care to make the boardwalk safe to be walked on. Although evidence of local practice is not determinative, having considered that occupiers for the neighbouring boardwalks had mounted signs warning of the potential slipping hazard, I am persuaded that the facts that the boardwalk could be slippery when wet and that this wetness would not always be visually noticeable to visitors, amounts to a recognizable risk that required some positive action on the part of the defendant.

[111]     I do not accept the defendant’s characterization that wetness was an “inherent risk” of such a nature that the plaintiff should have been aware of it being slippery, given she had considered this potential and indeed looked for evidence of that risk. Given no visual clues arise from the wood itself I find that a sign should have been erected at the top of the ramp to warn that it could be slippery given the variable weather conditions at the site.

[112]     There was ease in avoiding the risk by either putting a frictional surface such as a metal grate on the boardwalk to reduce the slipperiness that wetness would cause, or even erecting a sign, warning visitors of the invisible danger. The costs of reducing the risk of slipperiness would have been minimal. As such, in all the circumstances, I find that the defendant breached its duty under the OLA to the plaintiff in failing to take any steps to reduce or eliminate the risk posed by the boardwalk becoming slippery when wet…

[121]     The breach of duty by the defendant, accordingly, is its failure to put up a caution sign. But for there being a sign visible to someone approaching the boardwalk, the Incident would not have occurred. Therefore, I find the plaintiff has established on a balance of probabilities that the defendant is liable for any damages flowing from the Incident.

Cyclist Struck in Marked Crosswalk Found 100% at Fault for Crash

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving a cyclist struck by a vehicle.

In today’s case (Dhanoya v. Stephens) the Plaintiff cyclist rode into a marked crosswalk without stopping and was struck by a vehicle.  The Court found the cyclist was fully at fault for the collision and had the cyclist kept a proper lookout the collision could have been avoided.  In finding the cyclist solely liable Madam Justice Dillon provided the following reasons:

[13]         After consideration of all of the evidence and particularly after considering the evidence of the plaintiff in the context of all of the evidence and the surrounding circumstances, the evidence of the defendants and Woermke is accepted as to how the accident occurred. It is accepted that Jodie Stephens first saw the plaintiff as the plaintiff approached the intersection on his bike. Although Mr. Stephens was inconsistent as to his exact position when he first saw the plaintiff, it was from 15 to 30 feet from the crosswalk, close enough for the driver to have little option in the circumstances. He was travelling at about 35 kph initially and this estimate of his original speed was supported by Woermke. It was apparent to Mr. Stephens that the plaintiff was not going to stop. Mr. Stephens applied his brakes, managing to slow down to five to ten kph before impact. As described by Woermke, the plaintiff rolled into the crosswalk without stopping or looking. The plaintiff admitted that he bicycled across the crosswalk. He said that he stopped at the crosswalk, put his foot down, and looked for cars for a minute. He did not see the defendants’ vehicle approaching: if he had, he stated that he would not have entered the crosswalk. Clearly, the vehicle was there to be seen. Mr. Stephens realized that the plaintiff had not seen the Stephens vehicle and had not made eye contact so to judge his own safety. The plaintiff was on his usual route, on a bright day, getting close to his destination, with a perception that there were few cars on the road. In the scenario of little perceived traffic, it is concluded that it was the plaintiff’s usual practice to bike across the crosswalk. He followed that practice on the day of the accident. He did not stop and look both ways, else he would have seen the approaching vehicle which was 30 feet away from the crosswalk at most.

[14]         The driver of a motor vehicle has a general duty of care to keep adequate lookout for recognizable hazards on the road (Dobre v. Langley, 2011 BCSC 1315 at para. 34). A driver approaching a marked crosswalk assumes a heightened duty to take extreme care and maintain a vigilant lookout for those that might be in the crosswalk (Dobre at paras. 35 and 43). It is important to remember that the standard of care is not one of perfection, but whether the driver acted in a manner which an ordinarily prudent person would act (Hadden v. Lynch, 2008 BCSC 295 at para. 69).

[15]         A cyclist shares the same rights and duties with drivers of a motor vehicle (Dobre at para. 32). The duties specific to a cyclist are set out in s. 183 Motor Vehicle Act, R.S.B.C. 1996, c. 318. The plaintiff was riding his bicycle in a crosswalk in contravention of s.183 (2)(b) Motor Vehicle Act. He had a duty to keep a proper lookout (Dobre at para. 35).

[16]         Because of this violation of the traffic law, the plaintiff assumed a heightened duty to ensure his own safety, particularly to ensure that he was seen by other drivers (Hadden at para. 59; Dobre at para. 39; Callahan v. Kim, 2012 BCSC 1615 at para. 23). As acknowledged by the plaintiff, he did not have the statutory right of way when he bicycled across the crosswalk because he was not a pedestrian (Dobre at para. 34). Nonetheless, a reasonably careful and skillful driver has a duty to give way to a user of a crosswalk where there is an expectation that pedestrians and other users will be present (Callahan at para. 18). However, in the circumstance of the plaintiff’s failure to yield the right of way, he must establish that, after the defendant became aware that the plaintiff was proceeding onto the crosswalk, the defendant had sufficient opportunity to avoid the accident of which a reasonably careful and skilled driver would have availed himself (Hadden, at paras. 67-68). The plaintiff must establish that he was a recognizable hazard and that his actions left the defendant with enough time and distance to see and avoid striking him (Dobre at para. 34).

[17]         The plaintiff alleges that Mr. Stephens was not operating his vehicle at a reasonable speed in the circumstances, notwithstanding that he was travelling at below the speed limit. The plaintiff also says that Mr. Stephens was distracted by the conversation in the car, so failing to take due care and attention. The plaintiff maintained that the defendant breached the standard of care when he failed to yield the right of way to the user of the crosswalk and that this failure was the cause of the accident.

[18]         Mr. Stephens saw the plaintiff as he cycled towards the crosswalk and anticipated that the plaintiff was going to cycle right into the crosswalk. Although he admitted that he was in conversation with others in the vehicle, the evidence does not establish that he was so distracted so as not to notice the plaintiff as he was at the intersection and as he entered the crosswalk. The defendant was not speeding. He immediately slowed, braking to avoid a collision. He also tried to make eye contact with the cyclist. The defendant did not have sufficient opportunity to avoid the accident. A reasonably careful and skilful driver could not have avoided this accident.

[19]         The plaintiff did not exercise a reasonable degree of care when he cycled into the crosswalk without looking for vehicles. He did not exercise the expected degree of care for his own safety. He assumed that there was no traffic and cycled into the crosswalk without looking. Had he looked, he would have seen the defendant’s vehicle. Had he looked, the plaintiff would have made eye contact with Mr. Stephens who was alert to make contact. Had he looked, the plaintiff would not have proceeded into the crosswalk. Had he looked, this accident could have been avoided. The plaintiff is the author of his own misfortune.

[20]         The plaintiff is 100% at fault for the accident of November 21, 2015.

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