IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120814

Docket: M113503

Registry:
Vancouver

Between:

Abdullah Dazham

Plaintiff

And:

Mohamad Salem Nachar and Rola Ahmad Najm

Defendants

Before:
Master Baker

Oral Reasons for Judgment

In Chambers August 14, 2012

[1]            
THE COURT:  This
is an application in the first instance to sever liability issues from damages
or quantum, or alternatively to adjourn a four-day trial, all set for the 4th
of September, less than a month hence.

[2]            
This all relates to a single motor vehicle accident which occurred in
September of 2009. Liability is very much in issue. It is a live issue. It is
not pro forma or a template response by any means.

[3]            
There is an independent witness, a Mr. Miller, out there who is prepared
to give evidence, and the defendant, Mr. Nachar, has commenced proceedings in
the small claims jurisdiction against the plaintiff in these proceedings. So as
I say, there is no question that liability is contested and a live issue.

[4]            
Mr. Miller is a civil witness, a civilian, so to speak. He is not an
expert in the sense of physicians or other experts. He is not a professional in
the sense of a police officer or paramedic, anything of that nature. So I am
inclined to agree with Mr. Orr-Ewing about concerns of quality of evidence from
witnesses to the facts, such as Mr. Miller.

[5]            
To get to the issue here, the basis for the application is that the
medical issues are not resolved, that notwithstanding that it is been almost
three years since the accident. Mr. Dazham has ongoing issues, but I think more
importantly than that, the modality for treating and, hopefully, resolving his
injuries and symptoms has not yet been resolved.

[6]            
The basis for that conclusion is his affidavit, which he says:

I have consulted with Dr. Yau in
respect of my right shoulder.

[7]            
I think Dr. Yau has already given him cortisone shots. Certainly he has
received cortisone shots, but he says Dr. Yau told him that he is contemplating
surgery but wants to wait and see if the cortisone shots are effective. The
first shots were given in January, and I gather subsequent injections as well.

[8]            
The second physician, an orthopedic surgeon, Dr. Malloon, has also seen
the plaintiff. And again the plaintiff says Dr. Malloon told him that he needs
to see an MRI of Mr. Dazham’s back before he can decide whether or not to
perform surgery.

[9]            
I share Ms. Meade’s concern respecting that evidence. I agree that it
would have been much better to have something by way of direct evidence from
either physician, even a handwritten note confirming their observations and
their misgivings or concerns, but none of that is available.

[10]        
So we have it secondhand in the first instance. We have it secondhand
from a lay witness such as Mr. Dazham in a recounting of what was medical
opinion. Even if it is given in simple terms, it is still medical opinion.

[11]        
Finally, what was not discussed: it is a fact that Mr. Dazham’s
affidavit is given in translation. Thankfully it is a direct, simple succinct
affidavit, but still one has to regard that as a possibility for
misunderstanding or inaccuracy, I suppose.

[12]        
Nevertheless, I have concluded that this is not one of those cases where
the injuries can be said to have plateaued, that it is now just a matter of
waiting. That is not the case to me at all. Both physicians have indicated
further surgical intervention. They have also indicated that that is a
contingency; in essence  a) whether the cortisone injections work; and b)
whatever the MRI says.

[13]        
So by no means are we at a point where the extent of Mr. Dazham’s
injuries and their expected recovery can be given with satisfactory accuracy. I
just do not think we are there yet.

[14]        
As I say, the liability is very much in issue, and why it is generally
the situation or circumstance that the court prefers not to sever issues, when
we have a lay witness, when we have such an active issue. I think it is in
everyone’s interest that that matter be resolved first, and then as a
consequence, rather than adjourn the matter, that the issues of liability and
quantum be severed and that the matter of liability proceed.

[15]        
With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S.,
2006 BCCA 12 at paragraph 24, in which he comments that:

If the plaintiff’s injuries have
not resolved to the point where damages can fairly be tried, the parties may
still try the liability issues while the events are fresh in the witnesses’
memories.

[16]        
I understand Ms. Meade’s concerns about credibility being an important
aspect, both as to liability and as to damages, but I can’t see that that is a
sufficient concern or basis for not severing. I also think severing is the
appropriate approach, rather than adjourning, as I have already said.

[17]        
As a consequence, there will be an order directing that the issues be
severed. I am going to ask you to contact trial schedulers and let them know,
but I also think that some caution should be exercised that if the liability
trial is to be conducted in translation, I think it is not going to be a one-day
trial. I would be a little cautious about that, but that is up to you two. You
know the witness and the parties better than I do.

[18]        
And you were seeking costs. You said you want costs payable in any event
forthwith.

[19]        
MR. ORR-EWING:  Correct, Your Honour.

[20]        
MS. MEADE:  Given that liability is an issue, costs in the cause would
be more reasonable.

[1]            
THE COURT:  Well, no, I agree with Mr. Orr-Ewing to some extent
that costs will follow the event today, but they are not payable forthwith. There
is no basis I can see for that. So costs to the plaintiff.

“Master D. C. Baker”