IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Cochrane v. ICBC,
	2005 BCSC 159

Date: 20050207
Dockets: 98 0478 and 97 3363
Registry: Victoria

Between:

Dr. Nancy Joan Cochrane

Plaintiff

And:

Insurance Corporation of British Columbia

Defendant

Before: The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

Counsel for the Plaintiff:	L. G. Oss-Cech
Counsel for the Defendant:	R. C. Brun, Q.C.
Date and Place of Trial/Hearing:	January 5, 2005
	Victoria, B.C.

I.

[1]                 The plaintiff claims damages for personal injuries, said to have been suffered in two road traffic incidents.

[2]                 The first, (Action No. 97 3363), is alleged to have occurred on 2 March 1996, on a parking lot, in Rutland, British Columbia.

[3]                 The second, (Action No. 98 0478), is alleged to have occurred on 21 September 1996, on a parking lot, in Kelowna, British Columbia.

[4]                 Both incidents are said to have involved the plaintiff, first as a motorist, and second as a bicyclist, and unknown and unidentified drivers of motor vehicles.

[5]                 On 6 December 2002, an order was made that both actions be tried at the same time.  The defendant has given notice requiring trial of both actions by a judge and jury.

[6]                 The trial is currently scheduled to commence 6 September 2005.  The estimated length of trial is 37 days.

[7]                 The plaintiff applies, pursuant to R. 39(27)(a)[1] and R. 39(29)[2], for orders that:

1.         These proceedings be heard by the Court without a Jury;

2.         The liability portion be severed and heard separately from and before any assessment of damages; ...

II.

[8]                 The plaintiff's position on that application is summarized in her brief, as follows:

This is a very complicated medical case, which will require extensive review of the medical evidence.  Everything is in issue.  There will be extensive cross-examination on every medical issue in this case.  Any misunderstanding on the part of the trier of fact on a single part of these opinions could result in an unjust result for the Plaintiff.

... the risks of confusion and inability to retain all of the complex and conflicting expert evidence by the trier of fact, are enormous.  The trier of fact will have to do this through thirty-seven (37) days of trial and more than fifty (50) witnesses.

[9]                 She particularizes those general statements as follows.

[10]             A "variety and large volume" of opinion testimony will be relied upon at the trial, including, medical doctors, psychologists, economists, occupational therapists and vocational consultants.

[11]             A "variety and large volume" of medical documents, including hospital records and clinical notes, will be tendered as exhibits.

[12]             Not less than 17 psychological tests will be tendered in evidence for examination and cross-examination on their content and methodology.

[13]             The medical opinions on the injuries suffered, and the causation thereof, are in direct conflict.  It will be necessary for the trier of fact to understand extensive key medical terminology, the medical disciplines involved and the experience and qualifications of each of the witnesses giving opinion evidence.

[14]             It is anticipated, at the current time, that 15 expert witnesses, and probably more, will be called to testify at these trials.

[15]             The psychological tests which were administered to the plaintiff take on a significant complicating factor because, at the time of the events in question, the plaintiff was a registered psychologist, practising clinical psychology and neuro-psychology.  The defendant will say that the psychological tests administered to the plaintiff are very susceptible to manipulation by her as a neuro-psychologist.

[16]             In result, the plaintiff seeks a finding that the issues on these trials require prolonged examination of documents or accounts; require a scientific investigation, none of which can be made conveniently with a jury.  Or, a finding that the issues are of an intricate or complex character.

III.

[17]             As the pleadings currently stand, the issues defined will require answer by the trier of fact to the following questions:

(a)        what, if anything, occurred at the times and dates in question?

(b)        if there was an occurrence, was it caused, or contributed to, by the negligence of an unidentified motorist?

(c)        if there was an occurrence, was it caused or contributed to by the negligence of the plaintiff?

(d)        if there was an occurrence, did the plaintiff give written notice to the defendant as soon as reasonably practicable; and did the plaintiff make all reasonable efforts, in each instance, to ascertain the identities of the unknown motorists; and, are those identities not ascertainable?

(e)        if there was an occurrence, or occurrences, did the plaintiff suffer injuries?

(f)         if so, then were the injuries caused by the negligence of the unidentified motorists, or by other incidents, or to congenital defects or previous conditions of the plaintiff; and did either incident aggravate any pre-existing condition from which the plaintiff then suffered?

(g)        If the plaintiff was injured, what is the nature of each injury suffered?

(h)        If the plaintiff was injured, what amounts, if any, are to be awarded for the injuries suffered in the March 1996 occurrence, if assessed on 21 September 1996, for:

(i)         non-pecuniary damages;

(ii)         special damages;

(iii)        cost of future care;

(iv)        loss of income to date of trial; and

(v)         loss of future earning capacity?

(i)         If injuries were suffered, what amounts, if any, are to be awarded as overall amounts, for both occurrences, on the date of the award, for:

(i)         non-pecuniary damages;

(ii)         special damages;

(iii)        cost of future care;

(iv)        loss of income to date of trial; and

(v)         loss of future earning capacity?

(j)         If damages are awarded, then by what amount, if any, are they to be reduced by the plaintiff's failure to mitigate her loss?

[18]             Finally, there is, and counsel agree, the overriding and cardinal issue of the plaintiff's credibility and creditability, as a witness in these trials.

IV.

[19]             On the submissions of counsel and the authorities they have urged upon me, I understand the framework of analysis on this application to be as follows.

[20]             Subject to prescribed exceptions, R. 39(26) of the Rules of Court, confers a prima facie right on a litigant to a trial of an action by a court with a jury.

[21]             That prima facie right may be defeated, if it is established, on an application pursuant to R. 39(27), that:

the issues require a prolonged examination of documents or accounts; and, if so, such an examination cannot be made conveniently with a jury; or

the issues require a scientific or local investigation; and, if so, that investigation cannot be made conveniently with a jury; or

the issues are of an intricate character; or

the issues are of a complex character.

[22]             I find that the issues in these two trials will not require a prolonged examination of documents; nor a prolonged examination of accounts; nor a scientific investigation; nor a local investigation.

[23]             If my finding on the first two issues is wrong, then I find that, in any event, those issues, in these two trials, may be heard and determined conveniently with a jury.

[24]             I find that the issues in these two trials are not intricate.  And I find that the issues in these two trials are not of a complex character.

[25]             My reasons for coming to those conclusions are as follows.

V.

[26]             Other than to point out that there would be economic, vocational and occupational opinion evidence, I did not understand Mr. Oss-Cech to contend that this opinion evidence, other than its cumulative effect, would in any way render these trials unsuitable for a jury.  Mr. Oss-Cech's concern seems to be limited to the medical evidence.

[27]             There is nothing remarkably complicated about the medical evidence filed on this application.

[28]             The diagnosis of the injuries sustained in the first incident, is said, by Dr. C. A. Clelland, in a report dated 13 November 1996, to be "moderate soft tissue injury".  Full recovery was anticipated within one year.

[29]             Dr. Clelland's diagnosis of the injuries suffered in the second incident were:

... Head Injury with Post Concussion Syndrome.

[30]             The prognosis was unclear at the time of that report, 13 August 1997.

[31]             Deborah Allison, Ph.D., registered psychologist, introduced the notion of "mild traumatic brain injury", in a report dated 15 January 1998.

[32]             In a report dated 20 March 1998, Dr. Nadine Robertson referred to findings by other practitioners of "significant closed head injury"; "post traumatic stress disorder, combined with ongoing post concussion syndrome".  Dr. Robertson also referred to the opinion of other practitioners that the plaintiff's "post concussion symptoms ... were worsened by ongoing anxiety and low grade depression".

[33]             Dr. D. A. Cameron referred to "significant traumatic brain injury" in his report dated 14 July 1998.

[34]             Dr. Lynne C. MacKean opined that the plaintiff had "... sustained an injury to the left C2-C3 facet joint and possibly the posterior arch of the C2 vertebra ...", in a report dated 12 August 2003.

[35]             Dr. J. N. MacTavish reported on 22 September 1999, saying that "symptoms of anxiety, avoidance, and re-experiencing the traumatic events ... leads to a diagnosis of PTSD".

[36]             In a report dated 7 October 2003, Dr. Brian Thiessen reported, among other things, that he believed that the plaintiff:

... has marked attentional deficits and distractibility, which impair her functioning.  I believe that these are largely due to social and psychological factors and less due to any traumatic injury to her brain.  ...

[37]             In a report dated 8 October 2003, Dr. Paul G. Janke opined:

The description of Dr. Cochrane's functioning in the weeks and months following the bicycle accident is consistent with a mild traumatic brain injury in the form of concussion.  Repeated neurological exams and imaging studies in my opinion conclusively rule out a significant traumatic brain injury.  This would leave it in the realm of persistent Post-Concussion Syndrome or a mild traumatic brain injury.

[38]             The material assembled on this application does indeed constitute a substantial number of pages.  As it relates to the medical reports, however, the number of pages I do not find to be at all daunting.  If, instead of filing these voluminous reports, the opinions of these several medical practitioners was elicited through the use of a hypothetical question, the volume of material would be reduced significantly.  In any event, the issue is not the science of the opinions; it is the truth of the facts upon which the opinions are based.

[39]             I understood Mr. Oss-Cech's primary concern to be over the position taken by the defendant on the validity of psychological testing employed in the various assessments of the plaintiff.

[40]             Mr. Oss-Cech says that the defendant will say that these tests are "very susceptible to manipulation by a neuropsychologist", because that is the language used by one of the doctors reporting to the defendants on 15 November 2004.

[41]             Mr. Oss-Cech contends that this position taken by the defendant will necessitate an explanation and analysis of each of the many psychological tests administered to the plaintiff.  It was this kind of an exercise which led the court, for among other reasons, in Patterson v. Rankel, [2001] B.C.J. No. 1335, to strike a jury notice.  That case is clearly distinguishable.  I am not persuaded that such an exercise should be permitted to occur on these trials.  This defendant does not question the science of the tests.  It does question their reliability when administered to a neuro-psychologist such as the plaintiff in these cases.  In any event, the whole notion of reliability does not appear to be of significant controversy between the various experts.  That is to say, in an undated report, following an assessment of the plaintiff on 14 and 15 March 2000, Dr. Catherine A. Mateer wrote:

It is acknowledged that, as a clinical psychologist, Dr. Cochrane was familiar with many of the tests procedures.  Care was taken to minimize familiarity with specific tests and content where possible.  While they must be cautiously interpreted, test results are generally felt to be a valid reflection of her abilities at this time.  There was no indication of overt malingering or of symptom exaggeration, and significant improvement was seen on many measures since the prior assessment.

[42]             In his report of 7 October 2003, Dr. Thiessen wrote:

Dr. Cochrane has done quite well on neuropsychological testing, which would be expected given her familiarity with the tasks.  She has shown some problems in certain areas, but I think the validity of this testing has to be in question.  Dr. Cochrane knows very well the ins and outs of neuropsychological testing.  The standardization of these tests is based on patients who have no familiarity with neuropsychological testing.  Therefore we cannot clearly accept these results with a high degree of accuracy.

[43]             Clearly, the issue in these trials is not the scientific worth of these tests, and the meaning of every question therein.  Rather, the issue is what weight, if any, should the trier of fact give to the results of those tests, when the tests are administered to a neuro-psychologist.

[44]             Finally, there is no evidence before me, that in the year 2005, eight persons, chosen at random, from the voters' list in this county, will be confused, or overwhelmed, by such notions as post-traumatic stress disorder, traumatic brain injury, post-concussion syndrome or moderate soft tissue injury.  Nor, that they will have any difficulty distinguishing between the expertise of a general practitioner, a psychiatrist, a psychologist, a neurologist, or a neuro-oncologist.

[45]             Accordingly, the application to strike the jury notice is dismissed.

VI.

[46]             The plaintiff also applies for an order that the issue of liability in each of these trials be determined before the assessment of damages.

[47]             I take the governing principles on this application from Bernhardt v. Vernon School Board:[3]

In most personal injury cases the issues of liability and damages, though clearly separate, are rightly tried together.  This is so, even where the issue of damages, perhaps because of complicated medical evidence, takes longer to try than the issue of liability.  ... In a personal injuries case the courts will not depart from the normal practice except for good reason.

[48]             The good reasons advanced by the plaintiff are the savings in time and expense to be achieved on a severance of the issues.  It is said that there were only two witnesses to each of the incidents.  The time to hear and determine the liability issues, therefore, is measured in days, not weeks.

[49]             If there is a finding of no liability, then, on that premise, the savings are obvious.

[50]             However, I am not persuaded that the premise is true.  The defendant will dispute the plaintiff's credibility on the issue of liability.  Among other grounds, the defendant alleges inconsistencies in various narratives, on the same topics, by the plaintiff, over time.  Including narratives to medical consultants.

[51]             It is clear that all of the witnesses testifying to the pre-loss and post-loss history will not be required on the liability trials, if the issues are divided.  It is not clear, how many, if any, of the medical witnesses will not participate in the liability component of divided trials.  I take it from Mr. Brun's submissions, that all of the narratives said to be inconsistent will be put to the plaintiff on the liability components of the trials in any event.

[52]             It follows, therefore, that if liability is found on the first trials, it is more probable than not that there will be a duplication of some testimony on the second trial.  Such a development will serve to negate any apparent saving of time and expense by the severing of the issues.

[53]             In result, I find that an anticipated saving of time and expense by severing the issues does not constitute good reason to depart from the normal practice.  The application for such an order is dismissed.

“R.D. Wilson, J.”
The Honourable Mr. Justice R.D. Wilson