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ICBC – Frittering Away Your Money on Pointless Appeals? You Betcha!

In the recently published decision of Cassells v. Ladolcetta, 2012 BCCA 27, ICBC launched an ultimately unsuccessful, and arguably pointless, appeal of a decision of a 2009 decision of Supreme Court Justice N. Brown, who presided over a three week trial concerning injuries and damages sustained by a 32-year-old plumbing apprentice injured in a head-on collision in October 2005.


Soft Tissue Injury in Car Accident


The appeal concerned the trial judge’s decision that the plaintiff had sustained an aggravation of his skin psoriasis as a result of the accident. Mr. Justice Lowry, writing for the Court noted that the aggravation of the plaintiff’s skin condition was but one of many serious injuries with long-lasting repercussions for the plaintiff:


[4] While the focus at trial was primarily on the respondent’s psoriasis and psoriatic arthritis, he was otherwise quite badly injured in the accident. In particular, he suffered extensive soft tissue injury to his neck, thoracic and lumbar spine, right shoulder, elbow, and right knee, as well as a compression fracture in his lumbar spine, all which left him with residual symptoms that it was said he would continue to experience to some degree. In addition, he sustained a minor frontal lobe brain impact injury and he developed what the judge found to be a subclinical post traumatic stress disorder. The judge compared his life before the accident with what it was afterward, as follows:


[30] At this time in his life it is clear from the evidence that the plaintiff was functioning well, even without benefit of Willow’s intensive therapy and its usual remissionary effects. He was happy, optimistic, and looking forward to becoming a journeyman plumber, to making a lot of money, and eventually to marriage and children. Apart from his psoriasis, he was in good mental and physical health.
[31] It is equally clear that within three years after the accident, his health and psychological state had deteriorated to the extent it led Dr. M. W. Jones, a neurologist who examined him with respect to his concussion, to comment in his report, “It’s rather sad and upsetting to see what has happened to this gentleman over the last 3 years in terms of his overall dramatically decreased Quality of Life.”


ICBC’s Criticism of the Trial Judge


ICBC’s criticism of the trial judge’s decision was characterized as follows by the Court:


[5] The defendants contend the change in the respondent may be in large part attributable to the psoriasis and psoriatic arthritis from which he suffers, but say the evidence does not establish that is a consequence of the accident. They say, in particular, the judge’s conclusion in this regard is based on expert opinion for which there is no empirical medical evidence. It is, they say, opinion that should have been afforded no weight – it had no evidentiary value – such that the judge made an overriding and palpable error in relying upon it to make the findings of fact he did.
In respect of the evidence relied on by the trial judge Justice Lowry noted the following:


[10] To reach that conclusion, the judge had to decide whether psoriasis and psoriatic arthritis could be aggravated by trauma and stress such as the respondent suffered. Opinion evidence of rheumatologists and dermatologists as well as psychiatrists and other physicians bearing on the point in varying degrees was tendered on both sides. After thoroughly reviewing all of the expert evidence adduced, the judge concluded:


[153] Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis, and I so find.
ICBC’s lawyers challenged the trail judge’s reliance on the report of the plaintiff’s expert on this point, arguing that it was based on “novel science” and offering a theory that was at most “an unproven hypothesis”. The Court was not persuaded and noted that no issue had been taken at trial with the admissibility of the report and said the following:


[14] The judge said the criteria pertain to the admissibility of expert evidence. Admissibility requires the weighing of threshold reliability. No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community. Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.


[15] Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis. What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held. It was an opinion based on thirty years of her experience.


[16] The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider. Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident. I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.


The Pyrrhic Victory – Proper Approach to Assessing Failure to Mitigate:


The trial judge has reduced the amount accessed for non-pecuniary damages (pain & suffering) by 20% and past income loss by 30% on the basis that the plaintiff had failed to mitigate his losses by not taking medication recommended to him in the spring of 2007. Not content with that, ICBC appealed this point as well, arguing that the reduction should have been “substantially greater” and arguing that the trial judge took the wrong approach by applying a “modified subjective” test rather than an “objective” one. While the Court agreed with ICBC’s lawyers that the proper approach should be an objective one, it declined to interfere with the reductions made by the trial judge.


On this point, Justice Lowry said the following:


[26] I agree that if, by virtue of the injury sustained in an accident, a plaintiff is unable to make a reasonable decision about treatment, the plaintiff is in no different position with respect to mitigating the loss suffered than would be the case if, for other reasons unrelated to the accident, the plaintiff’s capacity to make reasonable decisions about treatment was lacking. But I cannot accept that means the law prescribes a subjective test, modified or otherwise. Janiak is clear; the test is objective. I consider that if a plaintiff had the capacity to make the decision about treatment it is said ought to have been made, and the advice was sound, the mitigation question in each instance must be what would be expected of a reasonable person in the circumstances having regard for the plaintiff’s medical condition at the material time and the advice given concerning treatment. If, through no fault of his own, the plaintiff did not have the capacity to make the decision, or the advice was not sound, the question would not arise.


[27] It is not simply a matter of a plaintiff having to follow the advice given in order to mitigate the loss claimed, as the judge appears to suggest at the outset of his legal analysis; rather, it is a matter of considering what a reasonable recipient of such advice would be expected to do in the circumstances having regard for the nature of the advice and any explanation of the risks and benefits given.


[28] That said, I see no basis to interfere with the judge’s finding that the respondent could not reasonably have been expected to commence the recommended course of treatment before the spring of 2007 following the deterioration in his condition in the fall of 2006. No question of any subjective consideration arises. It was for the judge to assess what was reasonable – what would be expected of a reasonable person in the circumstances – and it is not plain that he made any factual error in that regard such as would warrant the intervention of an appellate court.


[29] If, as appears to me, the judge found the respondent did not have the capacity to make a rational decision with respect to commencing the recommended treatment during the following six months, there is no basis to interfere with his conclusion. If, however, it could be said the respondent had the capacity to make the necessary decision that a reasonable person would in the circumstances have made to take the recommended medication, there would be no justification for him not having done so. But even if that were the case, it would not, in my view, work any real difference in the mitigation percentages the judge applied to his awards for non-pecuniary loss and past wage loss, particularly when the treatment was said to carry no more than a 50% rate of success.
The appeal was dismissed. The cost of this extraordinary waste of your automobile insurance dollars is not reported.


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