



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bedwell v. McGill,









2004
            BCCA 86




Date: 20040127





Docket: CA30758

Between:

Janice Marie Bedwell

Respondent

(
Plaintiff
)

And

Thomas W. McGill

Appellant

(
Defendant
)

And

Maureen P. Currie

Respondent

(Third Party)












Before:



The
            Honourable Madam Justice Levine





(In
            Chambers)




Oral Reasons for Judgment




G.
            Ritchey



Counsel for the Appellant





F.
            Hayman



Counsel for the Respondent





Place
            and Date:



Vancouver, British Columbia





27 January 2004




(Leave to appeal)


[1]

LEVINE,
          J.A.:
This
          is an application to appeal the order of Mr. Justice Melvin made following
        a summary trial pursuant to Rule 18A of the
Supreme Court Rules
.

[2]

The
        issue before Mr. Justice Melvin was the cause of a fall taken by the
      plaintiff the day following a motor vehicle accident and whether the injuries
      sustained
        in the fall were causally related to the injuries suffered in the motor
        vehicle accident.  Mr. Justice Melvin found on his review of the evidence
        that the fall was causally related to the injuries caused by the motor
        vehicle accident. The defendant, the driver of the other motor vehicle,
      brings this application for leave to appeal.

[3]

The
        primary ground for the application for leave is the allegation that the
        trial judge erred in coming to the conclusion that he did, on the ground
        that there is no evidence to support the inferences he drew.  The evidence
        before him included an affidavit of the plaintiff, portions of the examination
        for discovery of the plaintiff by the third party (some of which was tendered
        by the defendant in support of its case) and medical reports of two doctors,
        the plaintiffs family doctor and a specialist who examined her complaints
        of pain in her ear.  Also in evidence were the plaintiffs statements
        to the insurance adjuster and affidavits of witnesses who were present
        at
        the house where the fall took place but did not directly witness the
      fall.

[4]

The
        plaintiffs car was spun 180 degrees in the motor vehicle accident.  Following
        the accident, she reported symptoms of dizziness, headache and a pain in
        her ear.  She did not attend the doctor or the hospital the day of the
        accident or the fall because there were strikes and work stoppages during
      those days.

[5]

The
        day following the fall, among other activities, the plaintiff drove to
        a friends house in the evening.  She spent some time there with friends,
        but decided to leave because of headache and pain in her ear.  When she
        left the house, she fell down approximately five stairs leading from a
        balcony outside the front door. She broke her left ankle and sprained her
        right ankle.  She attended the hospital and her doctors office the day
      following the fall.

[6]

The
        plaintiffs evidence indicated that she experienced some episodes of
      dizziness following the accident.  She described it in her affidavit as
      sporadic dizziness. She also described pain in her left ear.

[7]

Her
      family doctor opined:

As
        a result of the motor vehicle accident that occurred on April 12, 2001,
        [the plaintiff] was experiencing vertigo. It is my opinion that the vertigo
        was caused by a whiplash effect to the vestibular (balance) system of
        the inner ear that occurred as a result of the motor vehicle accident.
        It is my opinion that this inner ear vestibular imbalance resulted in [the
      plaintiff] being at risk for falling...





[8]

The
        specialist in otolaryngology to whom the plaintiff was referred examined
        her six months following the accident. He found that she was suffering
        from a vestibular disorder called Visual Vestibular Mismatch which was
        confirmed by objective signs.  He opined that Visual Vestibular Mismatch
      often coincides with an abnormality involving the balance system.

[9]

The
        defendant says that the lack of direct evidence from the plaintiff as
      to how she was feeling immediately before the fall is a gap in the evidence
        that must lead to the conclusion that the plaintiff has not met the onus
        to prove the cause of the fall.  The plaintiffs counsel puts the question
        somewhat more broadly, as it was put to the trial judge. That was whether
        the plaintiff established that the injuries sustained in the motor vehicle
        accident caused or contributed to the fall.  She points out that the
        evidence showed that the plaintiff suffered from headaches, was shaky,
        suffered
      sporadic dizziness and had significant pain in her ear.

[10]

The
        tests to be applied on an application for leave are not in dispute.  They
        are whether the appeal has merit, whether the issue is of importance
        to the practice generally and to the parties, the utility of the appeal
        to
        the parties and whether the delay of the appeal will be prejudicial to
      the trial process.

[11]

The
        primary argument on this application relates to the merit of the appeal;
        however, counsel for the defendant also raises an issue that he argues
        is of general importance. He says it is anomalous that a final decision
        on an issue determined pursuant to a summary trial under Rule 18A that
        does not determine all of the issues between the parties requires an
      application for leave to appeal, whereas if the same issue was decided
      together with
        all the issues in a regular trial, leave would not be required.  He suggests
        that a party should not be denied its right to appeal because the summary
        trial procedure is chosen. That, he says, is a general issue of some
      importance on this application for leave.

[12]

In
        my opinion, in choosing to proceed in accordance with the Rule 18A summary
        trial procedure (which both parties in this case believed would have positive
        consequences for the proceeding in simplifying the issues and perhaps reducing
        the number of parties), parties are aware that an appeal will require leave.
        That is one of the consequences that they have to take into account in
      choosing that procedure.

[13]

In
        my opinion, the tests to be applied to this particular application for
        leave are the tests that apply with respect to all appeals from what
      are characterized as interlocutory decisions.  On that basis, I cannot say
        that there is any general importance of this appeal to the practice.  The
        decision with respect to causation is one that is peculiar to these facts.  Of
        course, an appeal would be of importance to the parties if one was taken
        and would have the utility that the decision of the trial judge would
      be either confirmed or overturned. Delay is not an issue.

[14]

Thus
        we return to the merits. In my opinion, the defendant has not demonstrated
        that the trial judge erred in his assessment of the evidence.  Neither
        his findings of fact nor his drawing of inferences from those facts could,
        in my view, be viewed by a panel of this Court as revealing a palpable
        and overriding error.  It was open to the trial judge to draw the inferences
        of fact that he did from the evidence before him.  The Supreme Court of
        Canada is clear that a trial judges findings of fact and inferences drawn
        from those findings of fact, whether based on direct or circumstantial
        evidence, are subject to the same standard of review in this Court; there
        must be demonstrated to be a palpable and overriding error.  On the argument
        that has been made before me, I cannot see any basis on which a panel
      of this Court could find that standard has been met.

[15]

I
      therefore dismiss this application for leave to appeal.

The Honourable
      Madam Justice Levine






