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发表于 2009-8-28 13:38:44 | 显示全部楼层 |阅读模式
BC Court of Appeal Weighs in on ICBC’s LVI Program and Human Rights
BC Injury Claims and the Local Government Act »
BC上诉法院加入对ICBC LVI计划和人权,BC伤害申诉及地方政府法案的辩论

$125,000 Non-Pecuniary(a. 金钱的) Damges Awarded for MTBI, Chronic Pain and Depression Afterwhat appears to be a hard fought trial, reasons for judgment werereleased today by the BC Supreme Court, Vancouver Registry, awardingjust over $536,000 in total damages as a result of injuries and loss asa result of a 2001 BC Car Crash.

In today’s case (Zhang v. Law)the Plaintiff was injured when she was a passenger in a vehicle thatwas T-boned on the driver’s side by another vehicle.  As a result ofthis collision she suffered various injuries including a Mild Traumatic Brain Injury (MTBI 轻微的脑外伤), Chronic Pain and Depression.

The Court heard a lot of evidence about the potential causes for the Plaintiff’s Depression.  The Defendants argued that the Plaintiff’songoing problems and depression was not caused by the accident, butrather by a series of unfortunate events that followed including amiscarriage and serious health problems suffered by her husband.

In navigating this evidence Mr. Justice Sewell did a good jobdiscussing the law of ‘causation’ in BC personal injury claims.  Inawarding $125,000 for the Plaintiff’s Non-pecuniary damages (money forpain and suffering and loss of enjoyment of life) the Court concludedas follows about the Plaintiff’s injuries, their cause, and theireffect on her life:

In summary I find that Ms. Zhang did experience a decline in hercognitive abilities after the accident.  I have already found that thisdecline was due in part to the MTBI.  I now turn to a consideration ofthe extent to which depression contribute to these difficulties and tothe etiology of that depression…

I conclude that Ms. Zhang continues to sufferdepressive symptoms, pain and fatigue.  I find that there has beencognitive impairment caused by the MTBI and the depressive symptoms.  Ialso find that the chance of any significant improvement in hercondition in the future is remote….

In my view this case is governed by the principles enunciated inthe Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  Onthe issue of causation I have already found that the injuries sufferedin the motor vehicle accident were a necessary cause of thedepression.  To paraphrase paragraph 41 of Athey, I have found that itwas necessary to have both the injuries from the accident and thenon-tortious causes for the depression to occur.  As in Athey, I haveconcluded that it was the combination of the accident, the effect ofMr. Chen’s illness, the loss of the foetus and the termination of thesecond pregnancy which caused the major and continuing depression.  Thedepression and continuing depressive symptoms are, in my opinion, anindivisible injury.  The other sources of Ms. Zhang’s difficulties,soft tissue injury and MTBI, are of course entirely attributable to theaccident…

The analysis of damage doesnot end with causation.  It is still necessary to consider whetherthere was some realistic chance that the depression would have occurredwithout the motor vehicle accident.  This does not go to the issue ofcausation but rather to the question of assessing damages which willrestore Ms. Zhang to her original position.  If her original positionincluded a realistic chance that she would have suffered a depressionin any event, the principles of compensation  require some reduction inthe damages awarded to avoid putting her in a better position than shewould have been in had she not received compensation for the accident. It goes without saying that “better” does not mean better in fact butbetter notionally because she will have received adequate monetarycompensation for the damages caused by the defendants’ negligence.

In this case the analysisis further complicated.  Of the three causes of Ms. Zhang’s ongoingproblems, pain, MTBI, and depression, only depression could be said tohave been a realistic chance in the absence of the accident.  On theevidence before me I find that, although the accident was a necessarycause of the depression, there was never the less a realistic chancethat Ms. Zhang would have suffered a major depression in any event. That realistic chance must be taken into account in assessing damages…


Given my findings as tothe extent of Ms. Zhang’s injuries from the accident a substantialaward for non-pecuniary damages is appropriate. As I have alreadyindicated, my task is to make an award of damages which, so far asmoney is able, will restore Ms. Zhang to her original position.  Theevidence before me is that before the accident Ms. Zhang was anoutgoing and intelligent person with a positive attitude to life.  Shewas able to combine long hours of work with numerous activities whichgave her pleasure.  She enjoyed walking and socializing with friends. She and her husband went to movies and went ballroom dancing.  Sheenjoyed music.  Ms. Zhang and Mr. Chen also had fulfilling maritalrelations.

All of the above activitieshave been profoundly affected by the injuries Ms. Zhang suffered in theaccident.  Ms. Zhang is no longer outgoing but reclusive.  Most of herenergy is devoted to working her shift at Safeway.  At the end of eachshift the combination of pain and fatigue preclude her from engaging insocial activities.  She can no longer tolerate music.   The couple nolonger goes to movies or dancing.  There has been a significant declinein marital relations.  While some of these outcomes are undoubtedlyrelated to Ms. Zhang’s ongoing depressive symptoms, they are largelythe result of the other injuries suffered in the accident.  Taking intoaccount the impact of these injuries on Ms. Zhang’s life while at thesame time recognizing the realistic chance that Ms. Zhang would havehad to cope with depression in any event, I award non-pecuniary damagesof $125,000.


One other interesting part of this case is theCourt’s discussion of the various experts called at trial.  Many expertphysicians testified for the Plaintiff and the Defence withsubstantially differing views of the cause and extent of thePlaintiff’s injuries.  This is often the case in serious ICBC injuryclaims.
When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted,‘independent’ medical examinations can be a lucrative trade fordoctors.   When experts are retained to testify at trial, however,their duty is to the court to give fair and impartial evidence, not toadvocate for the side that hired them.  Occasionally expert witnessesstray from this duty and give ‘partisan’ evidence.
This duty has been recognized in the common law and now the New BC Supreme Court Ruleshave been amended to require doctors to certify that they understandthis duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness
(1) In giving an opinion to the court, anexpert appointed under this Part by one or more parties or by the courthas a duty to assist the court and is not to be an advocate forany party.

Advice and certification

(2) If an expert is appointed under this Partby one or more parties or by the court, the  expert must, in any reporthe or she prepares under this Part, certify that he or she
(a) is aware of the duty referred to in subrule (1),
(b) has made the report in conformity with that duty, and
(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr.Tessler, was found to be ‘advocating for the defence’ when testifying. Specifically the Court said as follows about his evidence at trial:

Dr. Tessler was somewhatdismissive of Ms. Zhang’s symptoms after the accident.  He describedthem as being the “mildest of the mild”.  I found this comment, as wellas certain remarks he made during his evidence, as being indicative ofan attitude on his part that Ms. Zhang’s complaints should not be takentoo seriously.  I was particularly troubled by a comment made by Dr.Tessler in cross examination to the effect that Ms. Zhang’s symptomsmay settle after litigation.  Apart from the fact that Dr. Tessler wasnot qualified as an expert in psychiatry or psychology, the comment wasgratuitous.  On the whole I formed the impression was Dr. Tessler wasstraying into the area of advocating for the defence point of view inhis evidence.   I do not think he was doing so deliberately but he didseem to show a lack of balance and perspective in his evidence.


rease in the amount of compensation paid to   Stephen Miller, a victim of a miscarriage of justice, in a test case lawyers   said would have a "profound effect" on such awards.
 楼主| 发表于 2009-8-28 13:57:51 | 显示全部楼层

BC上诉法院加入对ICBC LVI计划和人权法案的辩论

$125,000 非金钱损坏赔付给:轻微的脑外伤, 随后的周期性阵痛和精神压抑似乎是艰难的听证攻防点, 昨天 BC 省高院, 温哥华注册处发布了判决原因, 判赔由于2001BC 车祸引起的伤害及代来的损失总额 $536,000.

今天的案例中, (张 v. 法律) 原告 受伤 在她乘车坐在司机一侧被另外的一辆车的T-杠所创.  撞车后她受到各种伤害包括 (MTBI 轻微的脑外伤)和精神压抑.

法庭听到了大量的关于原告’s 精神压抑潜在原因的证据 .  被告争辩说原告的现有问题和精神压抑 并非有车祸引起,而是有随后的一系列不幸事件  包括一次流产和她丈夫的一系列严重的健康问题所代来的.

Mr. Justice Sewell审视了这些证据 做了很好的关于 BC 人员伤害申诉的成因法律的讨论   在赔付  原告’s 非金钱损失的$125,000中 (病痛和失去生活乐趣的赔付金), 法庭 作出下列原告伤害, 起因,及其对她生活的影响的结论:

总的来说,我发现张女士确实承受着车祸后她的认知能力下降. 我已发现这种认知能力下降部分地归因于轻微的脑外伤.  我转而考虑延伸到 精神压抑 是由于困难 and tothe etiology of that 精神压抑…

I conclude that Ms. 张 continues to sufferdepressive symptoms, pain and fatigue.  I find that there has beencognitive impairment caused by the 轻微的脑外伤 and the depressive symptoms.  Ialso find that the chance of any significant improvement in hercondition in the future is remote….

In my view this case is governed by the principles enunciated inthe Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  Onthe issue of causation I have already found that the injuries sufferedin the motor vehicle accident were a necessary cause of the精神压抑.  To paraphrase paragraph 41 of Athey, I have found that itwas necessary to have both the injuries from the accident and the非tortious causes for the 精神压抑 to occur.  As in Athey, I haveconcluded that it was the combination of the accident, the effect ofMr. Chen’s illness, the loss of the foetus and the termination of thesecond pregnancy which caused the major and continuing 精神压抑.  The精神压抑 and continuing depressive symptoms are, in my opinion, anindivisible injury.  The other sources of Ms. 张’s difficulties,soft tissue injury and 轻微的脑外伤, are of course entirely attributable to theaccident…

The analysis of damage doesnot end with causation.  It is still necessary to consider whetherthere was some realistic chance that the 精神压抑 would have occurredwithout the motor vehicle accident.  This does not go to the issue ofcausation but rather to the question of assessing damages which willrestore Ms. 张 to her original position.  If her original positionincluded a realistic chance that she would have suffered a 精神压抑in any event, the principles of compensation  require some reduction inthe damages awarded to avoid putting her in a better position than shewould have been in had she not received compensation for the accident. It goes without saying that “better” does not mean better in fact butbetter notionally because she will have received adequate monetarycompensation for the damages caused by the defendants’ negligence.

In this case the analysisis further complicated.  Of the three causes of Ms. 张’s ongoingproblems, pain, 轻微的脑外伤, and 精神压抑, only 精神压抑 could be said tohave been a realistic chance in the absence of the accident.  On theevidence before me I find that, although the accident was a necessarycause of the 精神压抑, there was never the less a realistic chancethat Ms. 张 would have suffered a major 精神压抑 in any event. That realistic chance must be taken into account in assessing damages…

Given my findings as tothe extent of Ms. 张’s injuries from the accident a substantia法律ard for 非金钱的 damages is appropriate. As I have alreadyindicated, my task is to make an award of damages which, so far asmoney is able, will restore Ms. 张 to her original position.  Theevidence before me is that before the accident Ms. 张 was anoutgoing and intelligent person with a positive attitude to life.  Shewas able to combine long hours of work with numerous activities whichgave her pleasure.  She enjoyed walking and socializing with friends. She and her husband went to movies and went ballroom dancing.  Sheenjoyed music.  Ms. 张 and Mr. Chen also had fulfilling maritalrelations.

All of the above activitieshave been profoundly affected by the injuries Ms. 张 suffered in theaccident.  Ms. 张 is no longer outgoing but reclusive.  Most of herenergy is devoted to working her shift at Safeway.  At the end of eachshift the combination of pain and fatigue preclude her from engaging insocial activities.  She can no longer tolerate music.   The couple nolonger goes to movies or dancing.  There has been a significant declinein marital relations.  While some of these outcomes are undoubtedlyrelated to Ms. 张’s ongoing depressive symptoms, they are largelythe result of the other injuries suffered in the accident.  Taking intoaccount the impact of these injuries on Ms. 张’s life while at thesame time recognizing the realistic chance that Ms. 张 would havehad to cope with 精神压抑 in any event, I award 非金钱的 damagesof $125,000.

One other interesting part of this case is theCourt’s discussion of the various experts called at trial.  Many expertphysicians testified for the 原告 and the Defence withsubstantially differing views of the cause and extent of the原告’s injuries.  This is often the case in serious ICBC injuryclaims.

When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted,‘independent’ medical examinations can be a lucrative trade fordoctors.   When experts are retained to testify at trial, however,their duty is to 法庭 to give fair and impartial evidence, not toadvocate for the side that hired them.  Occasionally expert witnessesstray from this duty and give ‘partisan’ evidence.

This duty has been recognized in the common 法律 and now the New BC Supreme Court Ruleshave been amended to require doctors to certify that they understandthis duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness 专家证人的责任

(1) 作为提供意见给法庭, 这一部分一方或多方或者法庭任命的专家有责任帮助法庭 而不是任何一方的代言人.

Advice and certification

(2) If an expert is appointed under this Part by one or more parties or by 法庭, the  expert must, in any report he or she prepares under this Part, certify that he or she
(a) is aware of the duty referred to in subrule (1),
(b) has made the report in conformity with that duty, and
(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr.Tessler, was found to be ‘advocating for the defence’ when testifying. Specifically 法庭 said as follows about his evidence at trial:

Dr. Tessler was somewhatdismissive of Ms. 张’s symptoms after the accident.  He describedthem as being the “mildest of the mild”.  I found this comment, as wellas certain remarks he made during his evidence, as being indicative ofan attitude on his part that Ms. 张’s complaints should not be takentoo seriously.  I was particularly troubled by a comment made by Dr.Tessler in cross examination to the effect that Ms. 张’s symptomsmay settle after litigation.  Apart from the fact that Dr. Tessler wasnot qualified as an expert in psychiatry or psychology, the comment wasgratuitous.  On the whole I formed the impression was Dr. Tessler wasstraying into the area of advocating for the defence point of view inhis evidence.   I do not think he was doing so deliberately but he didseem to show a lack of balance and perspective in his evidence.

提出的赔偿给Stephen Miller, 法律误判的受害者,的赔偿额,一个测试案例的律师说:“将对此类判赔有深远影响”.
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