March 18, 2013 by Canadian Underwriter
The British Columbia Court of Appeal last week dismissed an appeal from a man who was hurt in several motorcycle accidents and awarded damages for pain and suffering and special damages, but was not awarded any money for loss of earnings or for future care.
In August 2011, a jury in B.C. Superior Court awarded Donald Wayne Desharnais a total of $31,000 for injuries in two separate motorcycle accidents. The Insurance Corporation of British Columbia was not a defendant but was a third party that responded to Desharnais’ appeal.
In his appeal, Desharnais claimed that records of what he told a counsellor should not have been admitted as evidence to contradict his testimony, that the jury’s decision to award special damages was inconsistent with its finding that the first accident did not cause or contribute to his physical condition at the time of the trial, and that defence counsel asked him inflammatory questions related to his lifestyle.
According to court records, Desharnais was on stress leave from his job as an Air Canada pilot when on May 25, 2006 he slipped while attempting to park his motorcycle in his driveway, resulting in back pain and spasms. A month later, Desharnais’ motorcycle was struck by a vehicle driven by Daniel McCaffrey, one of the individuals Desharnais sued.
Desharnais “testified that he was slammed to the ground, and heard a click in this back.” He also testified in 2011 that the accident “resulted in significant back pain, leading to a surgery in 2010.”
In August 2007, Desharnais was riding his motorcycle when it was backed into by a vehicle driven by John Romanowski and owned by Shannon Parkhurst. Romanowski and Parkhurst were also sued by Desharnais.
Both the lawsuit against Romanowski and Parkhurst, and the action against McCaffrey, were tried together by jury, in August 2011.
“The plaintiff testified that (the August 2007 accident) aggravated the symptoms of the June 2006 accident, but only for a short period of time,” the Court of Appeal noted in background information provided with its March 14, 2013 judgment. “Medical opinions offered at trial suggested that the August 2007 and June 2006 accidents contributed to the plaintiff’s current back problems.”
In the lawsuit, the jury ruled the accidents caused Desharnais physical, emotional and psychological injury. They awarded him $25,000 for pain and suffering, loss of enjoyment of life, past and future and $5,100 in special damages. Most of the damages were allocated to McCaffrey, the driver in the June, 2006 accident, while Romanowski and Parkhurst were ordered to pay $2,500 for pain and suffering plus $510 in special damages.
Desharnais had argued that he would have returned to work if it weren’t for the motorcycle accidents.
However, the jury also ruled that the June 2006 accident, involving McCaffrey, did not “cause or contribute to the claimant’s current physical condition” and that the 2007 accident, involving Parkhurst’s vehicle, did not “aggravate the injuries sustained by the claimant” in the earlier accident.
When asked whether there was a “real or substantial possibility that plaintiff would have returned to work as an Air Canada Jazz pilot” before the trial – had Desharnais not been injured in the 2006 accident – the jury said no. Asked whether, in the alternate, there was a “real or substantial possibility that the claimant would have returned to work as an Air Canada Jazz pilot, at a future date,” had he not been injured, the jury also said no.
After the jury awarded no loss of income or future care, Desharnais appealed on several grounds.
Although the appeal was dismissed, the Court of Appeal did rule that the trial judge erred in admitting hearsay evidence through a medical record.
In the trial, B.C. Supreme Court Judge Anthony Saunders instructed the jury that statements attributed to Desharnais in medical counselling records “could be used as prior inconsistent statements that may affect the plaintiff’s credibility.”
Judge Saunders relied on a 43-year-old Supreme Court of Canada decision. In the mid-1960s, Georges Armand Ares, who was injured in a skiing accident, had sued Dr. Albert Venner, Seton Hospital, Jasper and the Sisters of Charity of St. Vincent de Paul.
“Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein,” the Supreme Court of Canada ruled in 1970 in Ares v. Venner. “This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so.”
In Desharnais’ 2011 lawsuit, the Court of Appeal noted last week, Judge Saunders “considered that the records met the exception for business records under Ares v. Venner,” and therefore admitted records of Desharnais’ counselling sessions.
Court records indicate Desharnais denied during cross-examination one of the statements in his medical records.
“The plaintiff did not admit to making the statements contained in the records; accordingly, defence counsel was entitled to prove the statements,” the appeal court noted, adding that, as business records, the counselling records could have been admitted under the provincial Evidence Act.
Section 42 (2) of the Evidence Act states that “in proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if … the document was made or kept in the usual and ordinary course of business,” and if “it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.”
But the Court of Appeal ruled there “was no clear evidence” that the conditions specified in the Evidence Act had been met.
“I have not been able to find anything in the record to suggest that formal proof was dispensed with,” the Court of Appeal wrote. “Rather, in this case the plaintiff objected to their admission.”
But the appeal court ruled this error was “not sufficient to warrant intervention” from the appeal court, which noted that even if the defence lawyers had not brought up Desharnais’ counselling records, the information in them would have been placed before the jury anyway because an expert witness for Desharnais had submitted their contents in a report.
Desharnais had also argued, upon appeal, that defence lawyers asked inflammatory questions about his lifestyle. However, the appeal court ruled “the questions were also relevant to sources of ongoing stress for the plaintiff, and to whether the plaintiff was able to return to work before the accidents.”
Desharnais claimed there were several inconsistencies in the jury’s verdict. For example, he claimed that the jury’s finding “the first accident did not cause or contribute to the plaintiff’s physical condition at the date of the trial was inconsistent with the award for special damages up to the date of the trial.”
But the court of appeal ruled “the jury may have concluded that the plaintiff recovered sometime between the last treatment for which special c
osts was awarded and the date of the trial.”
Desharnais argued in his appeal that Judge Saunders was incorrect in asking the jury whether the accidents had caused or contributed to his current physical condition, but not to his current psychological condition.
“This submission is itself inconsistent with the position taken by plaintiff’s counsel at trial,” the court of appeal noted. “There, counsel said the plaintiff no longer suffered from depression at the time of trial, but that the jury should find he still suffered from the physical consequences of the accident. The jury disagreed with that submission, and it is not now open to the plaintiff to take a position he expressly did not take at trial.”