Rehabilitation: Courtesy of your insurance company

It’s no secret that prompt rehabilitation practices have reduced the ultimate cost of ICBC claims, and ICBC rehabilitation coordinators are an integral part of this process. But it’s important to remember that these coordinators are part of the insurance defence team and not your client’s advocate.

It’s when your patient is discharged from the rehabilitation facility that an ICBC rehabilitation coordinator becomes involved. It’s the coordinator’s job to assist your patient in achieving the highest level of gainful employment and self-sufficiency within the shortest possible time. At this point, ICBC and the health care system become enmeshed and it’s vital to know which rules apply.

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Appointing a committee as legal guardian

In most cases an adult is legally capable of making their own decisions, to initiate, and settle a legal action. However, if a person is not legally competent to manage their own affairs or to make proper decisions in their own interest, someone else can (and should) be appointed to make decisions on their behalf. “Committee” (pronounced kom-it-ee) is the legal term used in British Columbia for this court-appointed legal guardian.

If our clients need the support and protection of a committee (and those with very severe brain injuries often do) we will arrange for this to occur. Often it is a family member or trusted friend who will become a committee, but it can also be the Public Guardian and Trustee, or even a trust company. This process allows a family to act on behalf of their loved one who may not be able to take steps or cooperate in the legal process.

We recently settled a case for a severely brain injured client whose son was acting as her committee. In this case, we took steps at the start of the lawsuit and appointed our client’s adult son as her legal representative. Throughout the litigation process he made all the decisions. In appointing her son as committee, it provided our client with the protection she needed during and after the lawsuit – ensuring that her interests are protected and that the funds she receives are spent sensibly.

What can you do if you don’t know who caused the BC collision that resulted in your injuries?

Car Accident

Under section 24(5) of the Insurance Motor Vehicle Act you can successfully sue ICBC as the nominal defendant if you have taken all reasonable steps to find the driver who caused your injuries.

However, the recent case of Morris v. Doe that was pronounced by the BC Supreme Court in March 2011, gave us all a serious reminder that you must take steps to try to find the parties responsible not only immediately after the collision but also in the days and weeks after the collision.

In this case, the plaintiff was a passenger who suffered injuries when the vehicle she was riding in, driven by her husband, was rear-ended by another vehicle. Her husband got out of his truck and indicated to other driver they should pull into a nearby parking lot to exchange information. The other driver appeared to agree by nodding, but took off before the plaintiff or her husband were able to get the information. The plaintiff quickly called the police and notified ICBC, but took no further steps to try to identify other driver after the collision.

The court decided that the steps taken by the plaintiff were not enough and the action against ICBC was dismissed.

The plaintiff had failed to make all reasonable efforts to ascertain identity of the driver as required by Insurance (Vehicle) Act, section 24(5). The court stated that further steps such as posting signs and advertising in a local newspaper in an effort to seek out potential witnesses would be entirely “logical, sensible and fair”. The plaintiff had not taken any of these steps and as a result she was left without any compensation for her injuries.

“Big City” Lawyer or local counsel … what to do?

Town in the West Kootenays of British ColumbiaMany serious vehicle collisions occur in smaller communities throughout British Columbia and Canada where access to experienced legal resources may not be readily available.

Sadly, we often hear, too late, about cases that have been settled for a small percentage of their true value because those involved (including the lawyer) simply did not understand the real costs of proving and providing care for a seriously brain injured person for the rest of their lives. Local legal professionals may be experienced and skilled, but many have not had the opportunity to develop the expertise that we have developed over many years of working in the brain injury field. Families fear that a “big city” firm will be expensive, distant, and won’t provide a high level of personal care that is relevant to their region.  In fact, the opposite is true.

 

Providing service where you are

By only having very experienced lawyers working in one area (brain and spinal cord injury) we are prepared to travel all over the British Columbia to ensure the best possible service is provided.  On many occasions we will travel across the province for a seemingly short, but important meetings or interviews.

 

Working with legal representatives in your area

In some instances we will partner with a local lawyer (at no cost to our client), who can assist in the community, while we work to ensure the full extent of care and income-loss issues are addressed and considered  long before any trial, mediation or settlement agreement occurs.

 

No additional cost to you

It usually costs no more to have an experienced “big city” law firm handle a case than it does to have a local firm who may not have the same level expertise – it may even cost less. If care is needed we are often able to assist to ensure it is provided.

 

Knowledge of local resources

We have spent years working with experienced brain injury professionals all over the province and are often well aware of the local resources to use, and those to steer clear of.

 

Access to brain injury experts

As a firm devoted to achieving maximum compensation for survivors of a traumatic brain injury, we work with the all the necessary experts to prove the consequences of a serious brain injury. This is often required to ensure that all aspects of the injuries suffered by our clients are addressed. We have access to some of the best experts in the fields of: neurology, neurosurgery, neuropsychology, psychiatry, physiatry (rehabilitation medicine), orthopedic surgery, endocrinology, as well as occupational therapy, economics, engineering, and many others.

 

Webster & Associates prosecutes injury claims throughout British Columbia.

We have represented clients in Trail, Castlegar, Kelowna, Kamloops, Vernon, the Okanagan, the Kootenays, Victoria, Nanaimo, Prince George, Merritt, Vanderhoof, Anahiem Lake, Courteney, Comox, Nelson, Fort Nelson, Terrace, Williams Lake and Prince Rupert. We’ve also represented clients from Alberta, Ontario, the Maritimes, the United States, the United Kingdom and around the world.

 
Read what past clients have had to say about us in the client testimonials section of our website.

 
If you would like to discuss any of the issues referred to above please feel free contact us:

Greater Vancouver: (604) 713-8030
Victoria, Vancouver Island: (250) 589-8030
Toll Free within North America: 1 877 873-0699 Read more

Brain injury during baby’s birth

Newborn babyThe birth of a new baby should be one of the happiest moments in a family’s life. Sadly, at times that joy can turn to heartbreak if a baby is not born healthy or if things go wrong in the hours or days following a birth.

Things can and do go wrong whether in a hospital delivery room, in a hospital nursery or at home during a midwife attended birth. At times, an injury to a baby cannot be avoided even with the best of care. Other times, the baby’s injury is the avoidable result of negligent conduct by a physician, nurse, or midwife. Doctors, nurses, and registered midwives all have insurance that can be made available to help care for a child who has suffered an injury through a breach of their expected standard of care.

Injuries can occur in many ways. Injuries caused by a lack of oxygen are too common and often preventable. A baby who does not get enough oxygen during the labour and delivery process will usually demonstrate fetal distress. Though appropriate monitoring, whether by electronic fetal monitoring or through auscultation, fetal distress can often be picked up at an early stage, and steps can be taken to have the baby delivered quickly in order to avoid any injury.

A lack of oxygen may cause an injury in different ways. It may be the result of a lack of blood flow to the tissues (ischemia) or a lack of oxygen within the blood (hypoxia) and a combination of the two.

After birth, a baby that has sustained a brain injury may show low apgar scores. He may have poor tone, poor colour and require resuscitation before he is able to breathe on his own. Some babies show a poor cry, poor suck, have a need for tube feeding, have persistent abnormal tone, or seizures. Some require medications like Phenobarbital for seizures or antibiotics like Ampicillin and Gentamicin.

Babies who have suffered a brain injury may undergo extensive testing after birth. Abnormal blood gasses, x-rays, CT scans and MRIs may each be indicators of a brain injury.

Some babies with brain injury may have blindness or other vision deficits, epilepsy, quadriplegia or developmental delays. Some have more subtle injuries, which may not be as outwardly obvious but may still be very serious or disabling.

The costs of providing the life-long care and rehabilitation that a child with a brain injury needs can be huge. In addition, that child may not be able to grow up to be independent, or to earn a living in the future. A legal action may provide the funding needed to ensure that an injured child is properly taken care of in the future.

 

Did you know that the limitation period for a birth injury in BC is 21 years from the date of the baby’s birth and may be even longer? If your baby may have suffered a birth injury, competent legal advice should be obtained at the earliest opportunity to be sure you know when a legal action must be commenced.

In addition to a baby’s claim for birth injury, parents may have a separate claim (called an “in trust claim” ). The limitation period for this claim may be as short as two years from the date of the infant’s birth. It usually costs nothing to talk to a knowledgeable lawyer to find out what limitation periods apply in your situation.

In our practice we have been retained to act for families with injured children even ten or twenty years after their injuries first occurred. Although delays may mean that the injury and the negligence that caused it are more difficult to prove, the claim can still be successful and insurance funding is probably still available.

Quantum Considerations in Spinal Cord Injury (SCI) Cases

By Daniel F. Corrin and Edward P. Good

This paper offers a survey of commonly occurring issues in the presentation of damages in spinal cord injury cases. The specific issues will vary by virtue of individual circumstances, but there are many commonalities. Given the indisputable nature of a spinal cord injury, and the relative infrequency of occurrence, there are a limited number of quantum trial judgments. In preparing an SCI damages claim, cases involving other catastrophic injuries should also be considered.

Damages – The Challenge

The most serious challenge facing the Court when adjudicating an SCI claim, given the principle of fair and reasonable compensation, is the determination of the appropriate care regime and its costs, including the number of hours for caregivers and other supports, the rates paid, necessary physical supports and their replacement and whether there is to be any reduction in life expectancy caused by the injury itself.

General Legal Principles in Catastrophic Cases

The applicable principles set out in the “Trilogy” of Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R.(3d) 452 (S.C.C.), Arnold et. al. v. Teno et. al. (1978), 83 D.L.R. (3d) 609 (S.C.C.), and Thornton et. al. v. Board of School Trustees of School District No. 57 (Prince George) et. al. (1978), 83 D.L.R. (3d) 480 (S.C.C.), provide a summary of law regarding the assessment of damages in cases of catastrophic injury. The emphasis is on compensation for provable pecuniary losses in the realms of care and income loss.
Author Ken Cooper-Stephenson, (Personal Injury Damages in Canada: Carswell, 1996), provides a succinct summary of the principle:

The award of full and appropriate compensatory damages to cover the cost of future care is of paramount importance in the most serious cases. As Spence J. stated in Arnold v. Teno. ‘It should be stressed that in such a case as the present’ the prime purpose of the Court is to assure that the terribly injured plaintiff should be adequately cared for during the rest of her life.’ The standard of care to which a plaintiff is entitled is therefore extremely high.

The decision by Mr. Justice Chamberlist in Dennis v. Gairdner [2002] B.C.J. No. 2017 (S.C.), summarizes (para 61) the decision of Madam Justice McLachlin (as she then was) in Milina v. Bartsch (1985) 49 B.C.L.R. (2d) 33, B.C.J. No. 2762 (S.C.) [ s33 page 78] affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.) and described and affirmed nine specific principles applicable to awarding damages in cases of catastrophic injury. Briefly, these are:: (1) principle of restitution in integrum, (2) damages are for functional loss to provide substitute pleasures (3) the primary emphasis – care (4) award for loss of earning capacity, using statistics if necessary (5) inflation to be considered (6) allowance for contingencies – usually a deduction (7) (subsequently over-ruled) (8) deductions for duplication (9) non-pecuniary cap.

The decision in Townsend v. Kroppmanns (2003), S.C.J. No. 73, (per Deschamps, J.) adds an important gloss respecting the purpose of the award. At para. 18, the Court provides three further principles: (1) damages are assessed and not calculated (2) finality: awards are a one time lump sum of damages (3) the plaintiff has property over the award.

In other words, the award is owned by the plaintiff, so after assessment it should be the plaintiff who decides how to allocate the award. The ownership factor may have implications in any argument for court awarded periodic payments.

Non-Pecuniary Damages

The Supreme Court of Canada in the Trilogy capped non-pecuniary damages at $100,000 as of January 1978, plus a Cost of Living Allowance. Plaintiffs in catastrophic injury cases are generally entitled to the capped maximum of non-pecuniary damages. Accounting for inflation, the cap is approximately $300,000 in today’s dollars.

Other than recognizing that there is no amount of money that would make good on the loss, there is no rational way to explain the Trilogy’s pain and suffering limitation to an client who has sustained paraplegia or quadriplegia. Counsel are left to rely on “It’s the Law” to explain such inadequate compensation.

In Unruh v. Webber (1992) 98 D.L.R. (4th) 294 the defence conceded that the plaintiff was entitled to the Trilogy maximum. But do not take for granted that every spinal cord injury will result in an award of the upper limit. For instance, in Arce (Guardian ad litem of) v. Simon Fraser Health Region [2003] B.C.J. No. 1516, the plaintiff was 79 years old at injury and general damages were assessed at $200,000.

Care Costs

In SCI cases, care is usually the paramount issue for both the client and the court. The test for entitlement was summarized recently in Mitchell v. We Care et al [2004] B.C.J. No. 1400; B.C.S.C. No. 902 (S.C.). In that decision, Mr. Justice Kelleher was presented with a comprehensive list of British Columbia authorities regarding the approach to the provision of care in SCI cases. His concise summary of the current law regarding cost of care and special damages makes clear that the test is not “medical necessity”. The court states:

33 … The plaintiff & quot;is to be restored to the position he would have been in had the accident not occurred, insofar as this can be done with money& quot;: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78, aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

34 A court should award special damages if the expense incurred was reasonably necessary. In Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), the defendants argued that the test for determining whether the cost of care was appropriate was & quot;medical necessity& quot;. Mr. Justice Harvey pointed out that this standard was rejected in Zapf v. Muckalt (1996), 26 B.C.L.R. (3d) 201 (C.A.) as being too stringent. The Court of Appeal preferred a reasonableness test. The court in Zapf made its comments in the context of housing costs but Mr. Justice Harvey concluded that this approach should be applicable to other components of care as well. After having reviewed Milina and Mann v. MacCaig-Ross, [1998] B.C.J. No. 592 (S.C.), Mr. Justice Harvey formulated the test for special damages in this way at para. 91:

[I]t is what a reasonably minded person of ample means would be prepared to incur as an expense; and cannot in the remotest sense be considered a squandering of money; and for which there is a medical basis.
I respectfully agree.

The current law respecting the assessment of damages in catastrophic cases derives from the Trilogy. In addition, Milina has received approval in numerous following decisions. See for example Terracciano (Guardian ad litem of) v. Etheridge, [1997] B.C.J. 1051 (S.C.) wherein Madam Justice Saunders states:

… 101 I am guided, as was Madam Justice Levine in Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 at 99 (S.C.), by the test described by Madam Justice McLachlin in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at p.84:

The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health. At the same time, it must be recognized that happiness and health are often intertwined.

The pre-eminent principle is provision of funds for anticipated expenses which will facilitate the Plaintiff’s health, both physical and mental. In Dennis v. Gairdner, Mr. Justice Chamberlist stated the following in respect of future care:

96 Just as medical necessity is not the criteria for what future medical care is required, neither should the court look at minimal or lowest standard care that is available. The concept is rather one of adequate or reasonable compensation. In my view, what should be looked at in the case at bar is an award of compensation that will provide Mr. Dennis with a high standard of future care which will give him maximum life expectancy.

The test of “whether a reasonably-minded person of ample means would be ready to incur the expense” has been accepted on numerous occasions in British Columbia. See for example: Bystedt (Guardian ad litem of) v. Hay, [2001] B.C.J. No. 2769; Dennis v. Gairdner; Arce (Guardian ad litem of) v. Simon Fraser Health Region; Claiter v. Rose [2004] B.C.J. No. 56; and Mitchell v. We Care.

Incurred Expenses vs. Future Care Costs

Plaintiffs sustaining a spinal cord injury invariably require significant lifetime levels of personal, medical and rehabilitative care. Given the lag between injury and resolution of claims, there will also be a significant component for past care or special damages.

To mitigate loss, a plaintiff must expend funds and efforts where possible to provide for care. In spinal cord injury cases a care regime will likely be implemented upon discharge from hospital. This regime will probably be modified as capabilities, needs and efficiencies are discerned in the community. At the time of trial, the plaintiff may have utilized a number of regimes with varying levels of rehabilitative supports. The level of care received up to the date of resolution of the claim may not necessarily equal the level sought as future care costs. The same will be true of other expenses. The test for past care is not the same as for future care. Evaluation of past care decisions does not require optimum utilization or perfection. The test for mitigation is a broad one of reasonableness.

At page 166 of Personal Injury Damages in Canada, Cooper-Stephenson states:

The allowability of an expense is not measured by its ultimate effectiveness, but by the reasonableness of the decision in incurring it, given the surrounding circumstances. As was stated by the House of Lords in Clippens Oil Co. v. Edinburgh & District Water Trustees”, the wrongdoer is not entitled to criticize the course honestly taken by the injured person on the advice of his experts even though it should appear by the light of after events that another course might have saved loss.

Given the numerous pre-trial expenses undertaken as part of rehabilitative process, the reasonableness principle is important to apply in SCI cases. Unfortunately, where the plaintiff borrows funds to pay for care, it is very likely that the rates for borrowing will far exceed the limited recovery allowed pursuant to the Court Ordered Interest Act, R.S.B.C. 1996 c.79.

The proof of special damages incurred is strong evidence in support of future needs. However, given the cost of borrowing and the risks of litigation, an SCI claimant may need to rely on gratuitous care. That lack of direct expenditure will increase the practical risk that a court may assume that such “free” care will continue.
Theoretically it should not matter whether the SCI victim has incurred the expenses in order to allow recovery of future care costs. For example, where a high level quadriplegic needs supervision at night, that care may be provided by family or through other volunteer services. Expert reports can set out the necessity for the care and the cost of provision by professionals. The legal basis for the claim is that the defendant ought not to benefit from the provision of gratuitous but necessary care, regardless of who provides it. A claim for provision of services which have not been paid for directly by the SCI plaintiff pre-trial, can be subject to subrogation, ‘means testing’ or other circumstances in which the award can be clawed back or lost to the plaintiff.

If an SCI survivor is stuck in an extended care ward for lack of funds awaiting resolution of their claim, experience and practicality suggest a poor damages outcome. Theoretical care is always provided smoothly, but reports which envision a hypothetical care regime will invariably miss some components of the necessary care. Plaintiff and defence reports will predict significantly different needs. In the absence of experience with the levels of care being sought, the plaintiff will not be able to convincingly present his or her present needs and projections for future care.

In Trust Claims

” In Trust” claims are a recognized head of damages to compensate for services required, but supplied from an unpaid source, usually family. In accepting the ‘in trust’ claim as valid, the SCC relied upon earlier English authorities (see Arnold v. Teno). A defendant may not avoid its financial obligations because a family member has provided care beyond the norm expected of them.
In Brennan v. Singh, the plaintiff had substantial care needs. Harvey J., summarized the factors to consider in assessing in trust claims:

95 In my view, it is useful to review briefly the factors which are considered in the assessment of such claims. They are:

(a) where the services replace services necessary for the care of the plaintiff;
(b) if the services are rendered by a family member, here the spouse, are they over and above what would be expected from the marital relationship?
(c) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship;
(d) it is no longer necessary that the person providing the services has foregone other income and there need not be payment for such services.

Brennan v. Singh, supports the proposition that personal care provided by family members is beyond the norm and is compensable. If there is a trend toward the provision of these awards, though, it is not a generous one. Varied approaches to in trust claims can be found in Brito (Guardian as litem of) v. Woolley, [2001] B.C.J. No. 1692 (S.C.), and Jacobsen v. Nike Canada Ltd (1996), 133 DLR (4th) 377 (S.C.) and Terracciano v. Etheridge.

Home vs. Institution

One important issue in SCI cases is where the care is to be provided: at home or in an institution. In Andrews v. Grand & Toy Alberta Ltd., supra, the court stated:

The basic argument, indeed the only argument, against home care is that the social cost is too high . . . I do not think the area of future care is one in which the argument of the social burden of the expense should be controlling, particularly in a case like the present, where the consequences of it would be to fail in large measure to compensate the victim for his loss. Greater weight might be given to this consideration where the choice with respect to future care is not so stark as between home care and an auxiliary hospital. Minimizing the social burden of expense may be a factor influencing a choice between acceptable alternatives. It should never compel the choice of the unacceptable.

Despite this statement there have been cases where the courts have found that care within an institution is the appropriate choice ( see Arce v. Simon Fraser Health Region).

The cost of adapting a home is a valid portion of the claim for damages. In the Trilogy, Thornton was awarded the cost of a house. In most following decisions (see Milina v. Bartsch, para 209), the plaintiff has been awarded the cost of modifying a house. Where a plaintiff is young, or for other reasons does not have a permanent residence to modify, care must be taken to ensure adequate funds for future modifications.
There are a number of other recent SCI and brain injury cases which look at this key issue.

Specific SCI Needs

Most of the decided SCI cases canvas a significant list of care needs for the specific individual. While no two individuals have precisely the same needs, a review of the specific awards may assist in the development of items for consideration. In particular see the following decisions: Dennis v. Gairdner (see schedule “A”); Brennan v. Singh; Brito v. Woolley.

The “Total Lifestyle Approach”

In cases of catastrophic injury with significant care costs, there are two accepted methods of assessing damages which arise from the Trilogy: the “Total Lifestyle Approach” and the “Incremental” approach. By default the incremental approach is the standard approach utilized in damages assessments. The plaintiff receives funds for additional expenses that would not have been incurred but for the injury. In general, a plaintiff will seek to use the ‘total lifestyle’ approach where the total loss of earning capacity award would not enable the plaintiff to provide for basic living costs. The courts will use the & quot;total lifestyle& quot; approach when the plaintiff’s future life has been ‘radically changed’ and it is artificial to speak of & quot;additional& quot; costs given the complexity of care.
In theory, the total lifestyle approach is easily understood. In practice, it is often difficult to quantify. The total lifestyle approach was explained in Mitchell v. We Care, but was not adopted:

87 The total lifestyle approach is sometimes necessary to avoid double compensation, which would be contrary to the principle of restitutio in integrum. Madam Justice McLachlin addressed this problem in the trial decision in Milina as follows at 80:

It is established that overlap, or double compensation, must be avoided. The question is whether the court should proceed by first assessing the total cost of future care, including basic living expenses which the plaintiff would have incurred had he not been injured, and make a deduction from the award for loss of future earnings to reflect the fact that a portion of those earnings would have been spent on items included in the award for cost of care had the plaintiff not been injured; or whether, on the other hand, the court should proceed by awarding under the head of cost of future care only those expenses which the plaintiff establishes he will incur over and above what he would have spent for living had he not been injured.

The “total lifestyle” approach was also considered in Morrison v. Cormier Vegetation Control [1988] B.C.J. No. 3279, (S.C.) where it was adopted by Madam Justice Boyd.:

(vi) Total Lifestyle Approach:

111 Further, Mr. Webster has submitted that in a case in which catastrophic injuries have been suffered and in which the plaintiff’s entire future life has been radically changed because of her injury, it is appropriate for the Court to adopt the & quot;total lifestyle& quot; approach in assessing her damages for cost of future care. According to this method, the injured party is given:

…an award for future care which makes no deduction in respect of the basic necessities for which he would have had to pay in any event. A deduction must then be made for the cost of such basic necessities when computing the award for loss of prospective earnings, i.e., the award is on the basis of net earnings and not gross earnings. (See Andrews v. Grand & Toy Alberta Ltd., at p. 468 (see p. 28 Plaintiff’s Argument).)

112 This is in contrast with the alternative & quot;additional expenses& quot; approach, adopted by the defence, in which the Court deducts the costs of basic necessities when computing the award for future care and then computes the earnings award on the basis of gross earnings.

Life Expectancy

Life expectancy is often a controversial and difficult issue in the assessment of damages following an SCI. The financial consequences are significant. Consider an annual care cost of $250,000. With a life expectancy of 9 years the present value is 1.9 million. With a life expectancy of 33 years the present value of the care is 5.0 million dollars. Such disparity in life expectancy predictions is not uncommon.
The starting point for life expectancy following spinal cord injury is academic study and literature from the United States. Life expectancy estimates for individuals with SCI are based on longer term studies and are generally divided by location of injury (i.e. C1-4; C5-8, etc.) and whether the severance is “complete” or “incomplete”.
In determining life expectancy, experts consider SCI and other risk factors which reduce life expectancy. Some risks are ‘upfront’, some risks are ‘delayed’. For example, consider smokers. The advertisements say “smoking kills” – but actually it won’t for many years. The likelihood of a 22 year old male, smoker since 17, dying of a smoking related illness is very remote. However, if he continues, smoking will have a statistically significant impact on his life expectancy toward the end of his life. The graphing of these considerations influences the multipliers.

Positive influences on life expectancy are less common. However, SCI individuals who survive one year post incident do have an increased life expectancy – the greatest risks for survival occur during the first year. It is difficult to predict societal and medical changes which will influence life expectancy in the future. However, we know that life expectancy in the developed world has increased dramatically in the last century. There are minor variations according to factors such as geography – British Columbian’s enjoy a life expectancy of 0.5 years greater than the average Canadian. Life expectancy considerations are by nature personal and factually driven.

In Terracciano (Guardian ad litem of) v. Etheridge, [1997] B.C.J. 1051 (S.C.), Dr. Anton’s opinion respecting life expectancy was accepted, and the quadriplegic plaintiff’s life expectancy was found to be normal assuming the provision of appropriate supports. In Dennis v. Gairdner, the court states that the approach to life expectancy should be “reasonable and not pessimistic” (para 82) and life expectancy must be considered based upon the provision of optimal medical and social support.

Clearly life expectancy is difficult to predict. In Suveges (Guardian ad litem of) v. Martens, [2003] B.C.S.C. 415, 18 B.C.L.R. (4th) 179 the then 88 year old plaintiff, a ventilator dependant quadriplegic, outlived her short life expectancy, leading to post-trial applications to deal with outstanding issues.

Available Insurance Coverage

One reason SCI judgments are uncommon is the inadequate limits of insurance carried by most individuals. Obviously, counsel must closely consider the prospects of adding all appropriate defendants to extend the limits of coverage.

Average vs. Individual

The constellation of care needs in each SCI case is unique. Each claimant is entitled to what is reasonably necessary for that individual. It is subjective, based on the legal principles and the plaintiff’s unique situation. It is never “average” or “usual”. In Mitchell v. We Care, an argument against the care plan presented by the plaintiff was launched on the basis that it cost significantly more than was necessary for the “average” quadriplegic. This approach was rejected (at para 97) on the basis that the central question is: “What does this plaintiff require?”.

Contingencies

The confluence of catastrophic injury, aging and the social / societal impacts of SCI result in circumstances which leave SCI survivors with unforeseen needs which can be greater than predicted. There has been evidence presented in cases that the costs of medical and quasi-medical services rise at a rate higher than inflation. Cost of care reports are discounted using the 3.5% discount rate, despite the fact that personal care attendant costs are much more equivalent to wage loss (2.5% discount rate).
New procedures and services to assist SCI victims to improve their living conditions will probably become available, but likely at a significant cost. Devices not predicted to break down, will break down or become lost. The process of aging predictably requires individuals to need more assistance in unpredictable ways. In spinal cord cases that could include:

– increase in spasticity.
– pressure sores.
– degenerative changes.
– illness.
– loss of family support.
– training and management needs for the care or rehabilitive team.
– difficulties finding and replacing caregivers.
– provision of food, furniture and other expenses related to the live-in caregiver.
– needs for medically related travel.

A positive contingency of 15% was awarded in Morrison v. Cormier Vegetation, at para 109.
109 In the face of all these & quot;positive& quot; contingencies (i.e., requiring additional care in future), I am unable to confidently point to any contingencies which suggest any lessening of her need for care. I agree with Mr. Webster that the contingencies are likely all in one direction.
A positive contingency of 5% was awarded in Mitchell v. We Care (at para 111) on the same basis.

Tax Gross Up, Management Fees and Financial Management

Most SCI plaintiffs will be entitled to an award for management fees and tax gross up. The tax gross up compensates for the additional tax burden which the plaintiff will face. The management fees will allow the plaintiff to invest the bulk of the funds appropriately to generate the funds needed to pay for ongoing care. Given the complex nature of SCI claims, the plaintiff may also seek an award to provide for the retainer of an accountant to assist with administration of the award.

Where a ‘structured settlement’ is utilized, the plaintiff’s entitlement to tax gross up and management fees is eliminated. A discussion of s.55 of the Insurance (Motor Vehicle) Act is beyond the scope of this paper. One fundamental factor bears consideration. With current interest rates the premium needed to fund the provision of care as awarded or needed may be greater than a court’s calculation of present value. You will need to engage the appropriate expertise to review the possibilities.

Conclusion

Quantum considerations in SCI cases match the injury in magnitude. In approaching these cases the plaintiff’s individual care needs are the core element which influences many of the issues in dispute. A thorough approach to damages from a ‘life long’ perspective is essential.

Is It Just Wal-Mart?

Deborah Shank, a Wal-Mart employee, was hit by a semi-trailer in Jackson, Montana.  She suffered a catastrophic brain injury and requires lifelong 24-hour care.  The story and outrage began when Wal-Mart’s disability insurer claimed much of the settlement proceeds. In the United States, auto insurance coverage is often minimal; the semi-trailer had only $1,000,000 insurance coverage. The disability insurer paid more for her past medical care than she had set aside in a special trust to provide for part of her ongoing care. Due to the public relations disaster which followed, Wal-Mart withdrew their claim for Ms. Shank’s trust (Google “Wal-Mart Shank” to read the story). While this story occurred in the USA, which has private medical care and low insurance limits, Canada’s principles are similar and comparable situations occur here.

Why Did This Happen?

The Shank tragedy arises from a legal principle called “subrogation”. Subrogation allows one party to legally step into another party’s shoes so as to have the benefit of their rights and remedies. For example, Joe works at the Big Box Factory folding boxes for $1,000 a week. Joe is injured in a car accident and off work for ten weeks. The Big Box Factory benefits policy states Joe will continue to receive his wages. Joe is paid $10,000 under the company’s disability policy and then returns to work. If Joe brings a claim for his injuries and losses arising from the car accident, his lawyer will claim for all of the losses arising from the collision including the $10,000 of lost wages.

But wait, Joe has already received that money. If paid again, he would receive double compensation for lost earnings. The Big Box Factory is actually out of pocket because they paid Joe’s wages and hired Jane to fold boxes for ten weeks. Therefore, the employer is fairly entitled to this portion of Joe’s settlement. This is a logical and simple example; real life situations are more complex.

Subrogation in Canada

In Canada, subrogation arises through the “common law”, by statute or by contract. Under the common law, the Big Box Factory develops a right to the wage loss Joe received from the third party, if certain conditions are met. The leading decision from the BC Court of Appeal, called Confederation Life v. Causton (1989) sets out the principles governing common law subrogation. One important component is that the person who is injured must recover fully for their losses before a subrogated interest can arise. In the example above, if the responsibility for the car accident was divided and Joe did not receive full compensation, he would not have to repay his employer. He wasn’t fully compensated, so they can’t be either. The common law only applies if there are no governing contracts or statutes.

Canadian disability benefits providers (i.e. Sun Life or Blue Cross) provide benefits pursuant to a contract or agreement, either with the company or directly with an individual. Through the terms of the contract, a disability insurer can limit coverage in any way that is agreed to. Not surprisingly, there is usually ‘fine print’ (i.e. they only pay for a limited number of physiotherapy sessions). As it relates to subrogation, the company can make specific rules, and usually do. The specific provisions vary, but a common term is that the injured person must pay back the disability insurer to the same extent that they succeed in their own claim. In other words, if the injured individual recovers only 50% of what they lost then the insurance company equally receives 50% of their own expenses. For example, the disability provider spends $1,000 for physiotherapy, that money is claimed, but the claim is only 50% successful, so they get their portion and the injured person receives their own portion. Lawyers consider that, in essence, to be a flow through.

Some disability contracts stipulate that the insurer’s expenses are to be repaid first. If there is nothing left for the individual, so be it. This can happen when a disability provider asks for a “reimbursement agreement” to be signed after an injury. These reimbursement agreements usually stipulate that the money paid to an injured person is a loan and thus must be repaid fully before the injured individual receives anything. Injured people who are asked to sign a “reimbursement agreement “should be very cautious. The disability policy may not require the injured person to sign a reimbursement agreement. However, if a disabled employee does sign, they may give up more than they bargained for in the first place.

Ms. Shank’s situation would not have occurred under Canadian common law. However, something similar could have happened in Canada depending on what was written in the contract under which she received benefits. It appears that the type of contract she had with Wal‑Mart’s insurer allowed them to be repaid first.

Differences and Similarities to the United States

With universal health care, Canadians are not presently required to repay the government for health care expenses. In the USA, this is often mandatory when a third party is responsible for the provision of health care. Of note, there is proposed BC legislation, (Bill 22 Health Care Costs Recovery Act), which would allow the government to make out of province insurers pay for health care expenses when their insured (clients) cause damage to others. ICBC is exempt in the proposed legislation.

In practice private, disability insurers on both sides of the border are often willing to compromise their subrogated claims. This is because subrogation allows the insurer to step into the injured persons shoes with regard to their own expenses. If they demand too much, the injured person may abandon the claim, which might end the insurer’s right to anything. As well, because disability policies apply regardless of how the incident occurred, while claims for negligence only relate to specific acts and the consequences that flow from those specific acts, it is difficult to discern which portion can be recovered and, as such, they sometimes take a flexible approach.

Complicated Cases

The case of Joe and his ten weeks off from the Big Box Company is a simple one. In reality, things are usually more complex. For example, a woman receives a small bump to the head in a collision, but is clearly disabled. If the disability policy requires total disability before payments are due under the policy, the woman must prove she is completely disabled before the insurer must pay benefits. This doesn’t mean that the entire disability must arise from the collision. Perhaps she had an active debilitating condition and this just pushed her over the edge, or not. The complexity arises because a legal claim and a disability benefits claim each have different requirements before payments must be made.

Exceptions and Exemptions

The above is premised on a disability policy provided gratuitously by an employer. There are times when subrogation does not occur despite the apparent provision of duplicate benefits. The leading Supreme Court Case is called Cunningham v. Wheeler [1994]. It provides an exemption for privately arranged benefits on the basis that the wrongdoer should not benefit from an individual’s private act involving forethought and sacrifice. For example; a father with young children purchases a life insurance policy to provide for his family. It pays benefits no matter how he dies, i.e. whether from cancer or if he is killed in a motor vehicle collision. If killed in a motor vehicle collision, his estate may be entitled to bring a claim against the individuals who wrongfully caused his death. If the legal action is successful, there is no deduction of the benefits his family receives under the insurance policy despite apparent “double compensation”. The courts have determined that it would be unfair to deny the family the benefits the father purchased for them through financial sacrifice and planning. Also, it would unfairly benefit the wrongdoer who caused his death. The same rule may apply if an employee makes there own direct or indirect contribution to the purchase of a disability policy.

The Shank case highlights two important principles. 1) Companies, in the United States at least, are becoming more organized and diligent in collecting subrogated benefits when something or someone causes harm to one of their employees to their financial detriment. 2) It demonstrates the benefits of advocacy because the bad press for Wal-Mart was not worth the money they may have been able to recover from Ms.Shank pursuant to their subrogation rights.

The moral is that what works on Wal-Mart may work elsewhere. Subrogation issues are complex. Seek legal advice should you have any questions about whether you may have to repay insurance benefits following an accident.

The Total Lifestyle Approach in the Assessment of Damages

Despite the potential for significantly increased awards, the total lifestyle approach to the assessment of damages remains an underutilized method for quantifying damages for the catastrophically injured impecunious plaintiff.

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Incorporating Not-For-Profit Organizations: Is it worth it?

Introduction:

There are a myriad of groups that support brain injured individuals in this province and they come in all shapes and sizes. Located from Peace River to Port Alberni, these groups must decide how they will structure themselves and run their organizations. Having recently had the pleasure of working with Ms. Tina Suter and her New Westminster support group as it transitioned into a non-profit society called B.R.A.I.N. (Brain Resource Advocacy Information Network), I thought I would share some of the challenges that this group and others might have in deciding on an appropriate structure. While supporting individuals with brain injuries is obviously the goal, sometimes the structure of an organization can assist in achieving that goal, so deciding how to formulate the organization is important.

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The Expert’s File – What must be disclosed and when?

Background

Since it’s introduction on August 30, 1993 Rule 40A has provided a complete code governing the procedural aspects of the provision of expert opinion evidence. Rule 40A’s provisions, specific to civil proceedings, govern over section 10 and 11 of the Evidence Act, R.S.B.C. 1996 c.124. Rule 40A states (in part):

 

Rule 40A – Evidence of Experts
[en. B.C. Reg. 55/93, s. 14, eff. Aug. 30, 1993]

Application

(1) This rule does not apply to summary trials under Rule 18A, except as provided in that rule.
Admissibility of written statements of expert opinion

(2) A written statement setting out the opinion of an expert is admissible at trial, without proof of the expert’s signature, if a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.

Admissibility of oral testimony of expert opinion

(3) An expert may give oral opinion evidence if a written statement of the opinion has been delivered to every party of record at least 60 days before the expert testifies.
Idem
(4) The statement also may be tendered in evidence.

Form of statement

(5) The statement shall set out or be accompanied by a supplementary statement setting out the following:

(a) the qualifications of the expert;
(b) the facts and assumptions on which the opinion is based;
(c) the name of the person primarily responsible for the content of the statement.

(The English Court also has specific rules relating the provision of expert evidence. For comparative purposes, the English rules are reproduced as an appendix to this paper.)

The expert’s report, commissioned by counsel for the purpose of litigation is protected from involuntary disclosure by the doctrine of solicitor client privilege. That privilege is a fundamental principle of Canadian justice which has evolved into a substantive rule and must be protected, albeit not at all costs. (Smith v. Jones, [1999] 1 S.C.R. 445 (S.C.C.) )

The leading British Columbia judgments respecting the privilege attaching to an expert’s file were rendered (in two parts) by Mr. Justice Finch, as he then was, in Vancouver Community College v. Phillips Baratt (1987) (2d) B.C.L.R. 289, B.C.J. No. 3149 (S.C.) and [1988] B.C.J. No. 980 (S.C.). These judgments which summarize the principles of evidence respecting admissibility of expert opinions and the disclosure of the contents of experts files have been cited with authority in the B.C. Supreme Court on numerous occasions and at the Court of Appeal (Discovery Enterprises Inc. v. Ebco Industries Ltd., [1997] B.C.J. No. 1364).

The Vancouver Community College, supra suit, related to a construction dispute between the college and its architects. The defendants sought to compel the production of the documents in possession of the plaintiff’s expert, a quantity surveyor. Mr. Justice Finch would not allow any pre-trial production or disclosure as the expert’s evidence might not have been led at trial. Upon renewal of the application during trial, Mr. Justice Finch rendered his decision and summarized the role of expert at trial as follows: (at p296 – 297)

“So long as the expert remains in the role of a confidential advisor, there are sound reasons for maintaining privilege over documents in his possession. Once he becomes a witness, however, his role is substantially changed. His opinions and their foundation are no longer private advice for the party who retained him. He offers his professional opinion for the assistance of the court in its search for the truth. The witness is no longer in the camp of a partisan. He testifies in an objective way to assist the court in understanding scientific, technical or complex matters within the scope of his professional expertise. He is presented to the court as truthful, reliable, knowledgeable and qualified. It is as though the party calling him says: “Here is Mr. X, an expert in an area where the court needs assistance. You can rely on his opinion. It is sound. He is prepared to stand by it. My friend can cross-examine him as he will. He won’t get anywhere. The witness has nothing to hide.”

It seems to me that in holding out the witness’s opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert’s papers from production. He presents his evidence to the court and represents, at least at the outset, that the evidence will withstand even the most rigorous cross-examination. That constitutes an implied waiver over papers in a witness’s possession which are relevant to the preparation or formulation of the opinions offered, as well as to his consistency, reliability, qualifications and other matters touching on his credibility.”

Mr. Justice Finch’s second judgment was rendered later in the trial when the Defendant’s expert was called to testify. This expert had prepared drafts of his reports, copies of which he had then discarded. The expert’s solicitor had copies of the draft reports, some of which had the solicitor’s notes written on the drafts and one of which had the defendant’s notes on the draft report. All draft reports were ordered disclosed.

The following is brief discussion of aspects of litigation where an expert might be involved and a discussion of the concomitant requirements for disclosure of the expert’s work. In other words, what must be disclosed and when.

1 Prior to service of an Expert’s report.

Before the report of an expert retained directly by counsel for the party is produced in the litigation, that expert’s communications are protected as if they are communications between solicitor and client and that expert’s work product is protected as if it were the solicitor’s work product.

If the expert remains a confidential advisor the work of the expert remains entirely confidential. This is useful when counsel has need of advice and information pertaining to a particular subject area.

In Vancouver Community College, supra, Mr. Justice Finch, as he then was, noted the theoretical possibility that an expert may serve in a confidential advisory capacity and also provide an expert opinion, as long as steps are taken to separate the expert’s roles.

Despite being a confidential advisor, any original investigative information obtained by an investigating expert is subject to disclosure and could be subject to a Rule 26(11) or 28 application where he or she has original facts not available elsewhere. Examples may include measurements of an investigating engineer (Bestway Lath & Plastering Co. Ltd. v. McDonald Construction Co. Ltd (1972), 31 D.L.R. (3d) 47 (S.C.) or direct observations of medical practitioner following an IME (Stainer v. Plaza, [2001] B.C.J. No. 421 (CA) ). Of course, the non-opinion evidence of a witness may be compellable, though this issue will not likely arise until the other party becomes aware of the originally obtained facts.

2 Pre-trial disclosure requirements

According to Mr. Justice McEachern’s decision in Discovery Enterprises v. Ebco Industries Ltd., supra, the waiver of privilege over an expert’s file that occurs at trial does not apply at the discovery stage or where an expert has become involved in pre-trial applications and motions. The expert’s provision of affidavit evidence is not sufficient to require that his or her entire file be disclosed.
(see Discovery Enterprises v. Ebco Industries, [1997] Civ. L.D. 669 (B.C.C.A.) and Krusel v. Firth (1991) 56 B.C.L.R. (2d) 96 (B.C.S.C.).

3 Service of an Opinion report or production of opinion (40A (5) or (3))

At the time of service of a report in accordance with Rule 40A, the opinion of the expert and the facts and assumptions upon which the report were based must be disclosed. The decision of Ms. Justice McLachlin, as she then was, in S.& K. Processors Ltd et al. v. Herring Producers Ltd et al. (1983), 45 B.C.L.R. 218 (S.C.) held that since disclosure required by the Evidence Act, RSBC 1979, c.116 (as it was), is not voluntary the privilege which previously protected the expert’s work and file was not waived, except as required by the Evidence Act and in particular with respect to the opinion and the facts and assumptions on which the opinion is based.

What constitutes the facts and assumptions upon which an opinion is based will vary depending upon the situation and circumstances.

  • The original information gathered by an engineer must be reported (see Bestway Lath & Plastering v McDonald Construction 31 D.L.R. (3d) 47.
  • The video tapes of motor vehicle collisions referred to by an expert in a report, but not relied did not have to be provided. (see Bouthot v. Cao (1994), 96 B.C.L.R. (2d) 333 (S.C)).
  • The notes and file of a physician whose report complied with Rule 40A did not have to be produced (Hatherley v. Williams, [1992] B.C.J. No. 1770 (S.C.))
  • Whether “test data” obtained by a neuropsychologist is a “fact or assumption” upon which his or her report was based has been litigated, but, in the opinion of this author, has not yet been finally decided. In the Court of Appeal’s decision in Traynor v. Degroot ([2001] B.C.J. No.1935 CA) raw test data was ordered produced; however, the court specifically stated that in the circumstances the doctrine of stare decisis should not apply. It is an open question of whether such production may be ordered.

Where a party fails to provide the facts and assumptions relied upon in forming an opinion it has been held that an application may be made for the production of that specific information. Often this application is brought pursuant to Rule 26(11), for the production of documents held by a “non-party”. However, this may not be the proper procedure for obtaining privileged documents in the possession of an expert retained by a party (see Nguyen v. Donovan [1996] B.C.J. No. 604 B.C.S.C. @ para 49. It remains an open question as to whether it is proper to order production of the “facts & assumptions” or deal with the issue at trial.

An alternative approach is to argue that a report served without provision of the facts and assumptions upon which it is based does not comply with Rule 40A (5) and must be ruled inadmissible. It is submitted that if Rule 40A erodes privilege, then presumably it must be construed to do so at a minimum (R v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.)) and therefore the remedies contained within the Rules should be applied rather than presuming a loss of solicitor-client privilege requiring an order for disclosure of facts as discerned by a Judge or Master on an interlocutory basis. Within Rule 40A, notice of the objection to the report must provided in accordance with Rule 40A (13), and if the omissions are not remedied, the opinion of the expert may then prove to be inadmissible. (Goerzen v. Sjolie [1997] B.C.J. No. 44) There have been a number of decisions ordering production of the “facts” prior to trial; however, this may not be the only remedy available to deal with incomplete expert opinion reports.

The tension in the law with respect to disclosure of the experts work appears to relate to the balancing the value of solicitor-client privilege accorded to the work of experts retained by a party against the rights to full disclosure of otherwise unobtainable information. Discussion of these principles occurs in the judgments of Madame Justice McLachlin, as she then was in S&K Processors, supra and Chief Justice McEachern in Delgamuukw v. B.C (1988), (32 B.C.L.R. (2d) 152 (S.C.) (Delgamuukw #1) and Delgamuukw v. B.C (1988), (32 B.C.L.R. (2d) 156 (S.C.) (Delgamuukw #2) It is worth noting that most decisions which have resulted in Orders for disclosure have relied upon the first Delgamuukw decision and do not appear to consider the second Delgamuukw decision. Delgamuukw #2 appears to significantly restrict the application of the ratio of Delgamuukw #1 and is consistent with the protection of privilege until trial.

4 Production of the Expert’s file – At trial

When the expert takes the stand at trial, privilege is implicitly and presumably waived over all documents in an expert’s file relevant to the expert’s opinion. This rebuttable presumption occurs when the expert steps into the witness box. (Vancouver Community College, supra; Delgamuukw #1, supra)

This waiver can apply to all matters pertaining to the experts work including:

  • the substance of the opinion
  • the development of the opinion
  • the expert’s credibility

This would include draft reports, the solicitor’s retaining and continuing instructions and the expert’s time logs, all of which relate to the expert’s opinion respecting the matter at issue. As well, the expert can even be compelled to testify about verbal communications that the expert has had with counsel and parties respecting the development of the opinion (Vancouver Community College, supra; Martin v. Eichel, [1999] B.C.J. No. 1824 (S.C.).

In Delgamuukw #1, supra Chief Justice McEachern, as he then was, found that in this unusual case, the “original research” of an anthropologist, who prepared a voluminous report for use in marathon litigation, and whose work could not be repeated elsewhere was ordered disclosed. However, a few days later, the extent of disclosure required was further discussed and limited in Delgamuukw #2. It is submitted that these decisions relate to the wide discretion granted to the trial judge not to the issue of pre-trial disclosure.

An exception to the disclosure requirement pertains to the portion of the experts file which relates to confidential advice to counsel, i.e., to prepare for the cross-examination of opposing parties experts. The court recognizes that experts may be called upon to serve in both an advisory and an impartial capacities. It appears likely that a Judge or Master ruling upon the merits of disclosure of a portion of an expert’s file who has been serving in a dual capacity would err on the side of disclosure. It appears theoretically advisable for counsel to retain two experts where possible if the need for an opinion and extensive consultation are necessary. If not, precautions should be taken, including possible separate filing. In practice this appears to be rare.

The traditional practice appears to be for production of the testifying expert’s file at trial during cross-examination as referred to in VCC. However, the decision in Delgamuukw does appear to grant authority for the proposition that disclosure can occur at an earlier point in the procedure. In longer trials, the presiding Judge exercising his or her inherent jurisdiction may, and often does require advance production on some material and equitable basis. Counsel should not assume that the entire file is producible and should examine the experts file before opposing counsel reviews the same.

6 Failing to provide the Expert’s file

If an expert fails to bring his or her file or materials to the court, the obvious solution may require an adjournment. According to Mr. Thomas Woods (Impartial Expert or “Hired Gun”? Recent Developments at Home and Abroad, The Advocate, Vol 60, Part 2, March 2002, p205) the prospect of direct costs censure to the expert may occur in British Columbia at some point in the future.

If an expert maintains a practice of destroying or disposing of notes or drafts either on his own, or upon advice of instructing counsel the opposing counsel could and probably should ask the court to find the expert’s credibility to be lacking and attach little or no weight to the expert’s report.

7 Summary

The issue of the expert’s file and what should be produced is an incremental process with increased disclosure requirements at each stage of the process. It is undecided as to whether a neuro-psychologists raw test data must be disclosed upon service of an opinion report.

Recommended Texts

Brenner, D., Samuels, B., and Woods T.; Expert Evidence in British Columbia Civil Proceedings, (CLE, Vancouver, 2000)
Matthews, K, The Expert, (Carswell, Scarborough, 1995)

British Columbia Cases

Bestway Lath & Plastering Co. Ltd. v. McDonald Construction Co. Ltd (1972), 31 D.L.R. (3d) 47 (S.C.)
Bouthot v. Cao (1994), 96 B.C.L.R. (2d) 333 (S.C.)
Can-Dive Services Ltd. v. Pacific Coast Energy Corp., [1994] B.C.J. No.2455 (S.C.)
Co. Ce. Fin srl (Receiver of) v. Yorkton Securities Inc., [1999] B.C.J. No. 2978, [1999] B.C.C.A. 774 (C.A.)
Chiacig v. Chiacig, [2001] B.C.J. No. 2599 (S.C.)
Davies v. Milne (1999), 10 C.C.L.I. (3d) 44 (B.C.S.C.)
Delgamuukw v. B.C. (1988), 32 B.C.L.R. (2d) 152 (S.C.) (“Delgamuukw #1”)
Delgamuukw v. B.C. (1988), 32 B.C.L.R. (2d) 156 (S.C.) (“Delgamuukw #2”)
Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860 (S.C.C.)
Discovery Enterprises Inc. v. Ebco Industries Ltd., [1997] B.C.J. No. 1364 (C.A.)
Goerzen v. Sjolie, [1997] B.C.J. No. 44; (1997), 86 B.C.A.C. 44 (B.C.C.A.)
Hatherley v. Williams, [1992] B.C.J. No. 1770 (S.C.)
Henderson v. Lodge, [1993] B.C.J. No. 610 (S.C.)
Krusel v. Firth (1991), 56 B.C.L.R. (2d) 96 (S.C.)
Lueck v. Enax, [1995] B.C.J. No. 586 (S.C.)
Martin v. Eichel, [1999] B.C.J. No. 1824 (S.C.)
Milne v. Dorais et al (25 March 1999), Vernon Registry 17971 (B.C.S.C.)
Mitchell v. Sobagio, [1998] B.C.J. No. 3162 (S.C.)
Nguyen v. Donovan, [1996] B.C.J. No. 604 (S.C.)
Regina v. Perron (1990), 54 C.C.C. (3d) 108 (Que. C.A.)
S. & K. Processors et al v. Campbell Ave. Herring Producers Ltd. et al (1983), 45 B.C.L.R. 218 (S.C.)
Smith v. Jones, [1999] S.C.J. No. 15; 1 S.C.R. 445 (S.C.C.)
Stainer v. Plaza, [2001] B.C.J. No. 421 (C.A.)
Traynor v. Degroot, [2001] B.C.J. No.1935 (C.A.)
Vancouver Community College v. Phillips Barratt, [1988] B.C.J. No. 980 (S.C.)
Vancouver Community College v. Phillips Barratt (1987), 20 B.C.L.R. (2d) 289 (S.C.)
Wong v. Henderson, [1994] B.C.J. No. 2757 (M.- S.C.)