BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

$90,000 Non-Pecuniary Assessment For Chronic Myofascial Pain

January 30th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic myofascial pain symptoms following a collision.

In today’s case (Camilleri v. Bergen) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff suffered from chronic myofascial pain symptoms which were not expected to improve.  In assessing non-pecuniary damages at $90,000 Madam Justice Loo provided the following reasons:

[74]        As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms. I can do no better than to summarize her symptoms as set out in Dr. Dost’s report. She complains of:

1.   Constant cervical or neck pain that radiates to the interscapular region, left shoulder and diffusely down her arm to her third and fifth fingers;

2.   Constant thoracolumbar or back pain, without radicular symptoms, but with numbness and tingling;

3.   Headaches almost daily. About four days a week she has a dull headache, occipital pressure, and some nausea. Three days a week her headaches are quite severe and radiate to her left eye with pressure, pounding, nausea, and light and noise sensitivity;

4.   Sleep disruption secondary to pain;

5.   Altered mood;

6.   Light-headedness (a faint-like sensation that occurs early in the morning);

7.   Increased tinnitus;

8.   Increased blurred vision requiring stronger prescription glasses; and

9.   Difficulties with memory, processing speed, multitasking, attention and recall.

[75]        Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.

[76]        Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money. She could easily have made more money in private practice but she was committed to helping those who could not afford private care. She was so committed to her work that she increased her hours of work after the accident so that her patients would continue to have treatment despite the toll it has taken on her physical and emotional health.

[77]        Ms. Camilleri said that it has been emotionally challenging for her to be forced to step back into what she considers a lesser role in the treatment of the eating disordered. She enjoyed her volunteer positions, she enjoyed teaching, she enjoyed the continuing education opportunities with other health professionals, and she enjoyed research. Those are things she can no longer enjoy.

[78]        She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy. She no longer even travels.

[79]        I have no reason to doubt Ms. Camilleri’s evidence. There is no suggestion that she is anything other than a credible, straightforward witness who keeps doing her best in situations where others likely would have given up. But she has been forced to give up many of the things in life that she enjoyed…

[88]        I conclude that an appropriate award in this case for non-pecuniary damages is $90,000.


Impact of Life Expectancy On Non-Pecuniary Damages?

January 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether a Plaintiff’s life expectancy should influence the non-pecuniary damages awarded in a personal injury claim.

In today’s case (Mathroo v. Edge-Partington) the Plaintiff pedestrian was injured when struck by the Defendant’s vehicle.  The Defendant was found wholly at fault.  The Plaintiff suffered “a fracture to his right elbow, which required surgery to insert a plate and screws into his arm.“.  He had ongoing issues at the time of trial.

The Plaintiff was 83 years old and argued that the ‘golden years’ doctrine should apply in assessing damages.  The Defendant argued the opposite noting “that the limited remaining life expectancy of a person in Mr. Mathroo’s situation justifies a lower award than would otherwise result.“.

The Court was not comfortable with the Defendant’s submission and noted the following:

[95]         The golden years doctrine has some limited applicability here, in that Mr. Mathroo has experienced a decrease in his willingness to walk because of the effect of his injuries on his perceptions of his physical condition and his feelings of safety when walking, but I take the point made by Mr. Edge-Partington’s counsel that he was not involved in that many activities beforehand, other than going to the temple and gardening, so the curtailment of them has been more limited than in other cases cited on his behalf.

[96]         I do not feel comfortable relying on Olesik to reduce the non-pecuniary damages on the basis of Mr. Mathroo’s limited remaining life expectancy, as urged by Mr. Edge-Partington’s counsel. Its applicability on that issue has been questioned by other decisions of this Court. In Giles v. Attorney General of Canada, [1994] B.C.J. No. 3212 (S.C.) varied on other grounds (1996) 71 B.C.A.C. 319, Mr. Justice Fraser held that the principle described in Olesik and the golden years doctrine essentially balanced each other out, so that advanced age should not be a factor either way in arriving at an appropriate award. This view was adopted more recently inDuifhuis v. Bloom, 2013 BCSC 1180.

[98]         In all the circumstances, before dealing with whether an amount should be added to reflect a loss of Mr. Mathroo’s housekeeping capacity, I would make an award of non-pecuniary damages of $60,000.

 


It Is Not Open For a Trial Judge To Award a Defendant Double Costs Where a Plaintiff Obtains Judgement

January 26th, 2015

Reasons for judgement were released today by the BC Court of Appeal (C.P. v. RBC Life Insurance Company) confirming that a trial judge does not have the option of awarding a Defendant double costs in circumstances where a Plaintiff obtains a judgement at a quantum below a Defendant’s formal offer to settle.  In noting this restriction in judicial costs options the Court provided the following reasons:

[90]         Neither the trial judge nor the judge at Minhas made reference to the decision in Gulbrandsen v. Mohr, 2013 BCSC 1481. In Gulbrandsen the trial judge, in reasons indexed at 2013 BCSC 959, initially awarded the plaintiff costs up to the date of the defendant’s offer to settle, and double costs to the defendant thereafter. He then reconsidered the double cost award. After reviewing numerous authorities including A.E., A.E. Appeal,Ward v. Klaus, 2011 BCSC 99 and Currie v. McKinnon, 2012 BCSC 1165, he concluded that it was not appropriate to make an award of double costs to a defendant where the plaintiff had obtained a judgment.

[91]         I am of the same opinion. I do not believe that R. 37B intended to change the long-standing practice concerning the circumstances when double costs could be awarded. A plaintiff who obtains a judgment for less than an offer to settle is already subject to sanctions: R. 9-1(6)(a) allows the court to deprive the successful plaintiff of costs to which it would otherwise be entitled. Rule 9-1(5)(d) provides an even more punishing outcome as the plaintiff is not only deprived of costs he or she would otherwise receive, but must also pay the defendant’s costs subsequent to the offer to settle. To also allow a defendant double costs would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs. I would adopt in that regard the comments of Madam Justice Adair in Currie:

[18]      I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs.  This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer.  The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant.

[19]      In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants.  I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle.

[92]         In the result, I find that it was not open for the trial judge to award double costs to the defendant. It was an error in principle to do so. The decision in Minhas which made a similar order was also wrongly decided and should not be followed.


$80,000 Non-Pecuniary Assessment For Chronic Knee Injury

January 23rd, 2015

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee injury caused by a collision.

In today’s case (Reddy v. Staples) the Plaintiff was involved in a 2009 collision that the Defendant accepted responsibility for.  The Plaintiff had pre-existing knee problems but the collision caused new injuries which aggravated his limitations.  The Court found the collision caused chondral injuries and these were responsible for 85% of the Plaintiff’s ongoing knee problems.  In assessing non-pecuniary damages at $80,000 Mr. Justice Blok provided the following reasons:

[115]     It is difficult to assess the contribution of each condition to the plaintiff’s current knee symptoms because the experts addressed this issue only in general, sometimes vague, terms.  It is reasonably clear that the meniscus damage that was already present at the time of the accident would have caused problems for the plaintiff, even absent the accident, until it was repaired in October 2009, and it might have continued to cause problems after that.  As Dr. Calvert said, “the majority of patients with an isolated meniscal injury do recover a good portion of their function post surgery”, thus suggesting that some do not.  Dr. Calvert said that even with just the meniscal damage and removal he would have counselled, post-surgery, against activities that involved repetitive impacts.  It is also clear from the evidence, however, that the chondral injuries to his patella and medial femoral condyle are more significant than was the pre-existing meniscal damage.  I also conclude that the risk of degenerative arthritis associated with just the meniscal injury was and is materially lower, and with a longer time frame, than it is with the chondral injuries, where osteoarthritis is already present.

[116]     Doing the best I can on an assessment of the whole of the evidence I would apportion the source of Mr. Reddy’s current and probable future knee problems as follows: 85% to the chondral injuries caused by the accident and 15% to his pre-existing meniscus damage…

[118]     I am satisfied that Mr. Reddy, 31 years old at the time of the accident, suffered a significant injury to his knee (the chondral injuries) as a result of the accident.  In addition, he had pain and stiffness in his back, neck and shoulder areas for a period of about four or five months.  His knee condition generally (that is, involving both pre-accident and accident-related causes) is frequently painful, restricts his activities and enjoyment of life, and causes him stress and anxiety.  On my assessment, 85% of those problems are attributable to the injuries he suffered in the accident.  The accident-caused injuries are degenerative, as is his pre-existing knee condition, though the degeneration associated with the accident injuries has already manifested itself and the degeneration associated with his pre-accident condition is likely to occur later, perhaps much later.

[119]     As Dr. Calvert noted, it is likely that the plaintiff will have persistent knee pain with weight-bearing activity.  He is likely to have increasing knee symptomatology in keeping with osteoarthritis and he may also require further arthroscopic surgery or even partial or full knee replacement surgery at some point in the future…

[125]     Based on the cases cited and a consideration of all of the Stapley v. Hejslet factors, and bearing in mind the 85-15 apportionment made previously concerning the cause of Mr. Reddy’s ongoing knee problems, I consider that non-pecuniary damages are appropriately assessed in the amount of $80,000.


Motorist Faulted For Crash After Driving Too Fast In Foggy Conditions

January 19th, 2015

Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, assessing fault for a fatal collision which occurred during foggy conditions.

In today’s case (Roy v. McGinnis) the Plaintiff was driving a motor home which had stopped at a T intersection approaching a highway.  The Plaintiff attempted to turn left on the highway.  The area was covered in dense fog and visibility was poor.  The Plaintiff failed to appreciate that the Defendant was travelling down the highway as the Plaintiff entered the intersection.  Both motorists were found equally to blame for the crash, the Plaintiff for entering an intersection when it was unsafe to do so and the Defendant for failing to drive safely given the conditions.  In reaching a conclusion of equal blame Mr. Justice Groves provided the following reasons:

[30]         I conclude that on November 25, 2004, by operating his loaded tandem truck at a speed of at least 90 to 100 km/h when the visibility was limited to less than 100 feet due to dense fog, such that an operator driving reasonably for the road conditions would more likely have driven at close to 50 km/h, the defendant operated his vehicle in a negligent manner in that he breached the standard of care established by s. 144(1) of the Motor Vehicle Act by operating a vehicle at an excessive speed considering the visibility and weather conditions.  I further conclude that this negligence was at least a partial cause of the accident in that, but for the unreasonable and excessive speed at which McGinnis was operating his vehicle, McGinnis could have avoided the impact with Roy’s vehicle, just as Smith had avoided impact when travelling at 50 km/h.

[31]         In so concluding, I note the defendant’s argument and supporting case law that, as a servient driver turning into a lane where the defendant had a right of way, the plaintiff bears the onus of proving that a reasonable and skillful driver would have had sufficient opportunity to avoid a collision (Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 at 461).  Here the collision occurred over a very short period of time; however, I have found above that a reasonable driver would have been travelling much slower and so would have had more time to perceive the danger.  I therefore find that the plaintiff has met his burden of proving that a reasonable and skillful driver would have had a sufficient opportunity to avoid the collision.

[32]         I also find that the plaintiff was negligent…

[36]         As such, I conclude that the plaintiff was negligent in that he failed to comply with s. 175(1) of the Motor Vehicle Act, when he entered a through highway and in doing so failed to exercise appropriate caution and to yield the right of way to traffic, traffic which was so close so as to constitute an immediate hazard.

[37]         However, based on the evidence before me, I cannot draw any particular conclusion as to the relative level of negligence of these two negligent drivers.  Better put perhaps, I cannot conclude based on the evidence before me which driver was more negligent.  On the one hand, the plaintiff was clearly the servient driver, but on the other hand, the defendant was, I find on the evidence which I accept, driving at a speed far in excess of what would have been safe for the road and weather conditions he encountered on that day.  

[38]         As such, relying on s. 1(2) of the Negligence Act, R.S.B.C. 1996, c. 333, I apportion liability between the plaintiff and defendant equally.  As such, the defendant is 50% responsible for the damages resulting from the accident and the plaintiff is 50% responsible for the damages resulting from the accident. 


$160,000 Non-Pecuniary Assessment for Major Depressive and Somatic Symptom Disorders

January 16th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological issues following a collision.

In today’s case (Cornish v. Khunkhun) the plaintiff was involved in an intersection collision in 2010.  Both the Plaintiff and Defendant were found equally to blame for the crash.  The Plaintiff suffered from a  major depressive disorder and somatic symptom disorder following the collision.  Her non-pecuniary damages were assessed at $160,000 and in reaching this figure, prior to factoring in the liability split,  Mr. Justice Skolrood provided the following reasons:

[131]     The evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a Somatic Symptom Disorder which results in her experiencing chronic pain. I also find that she experiences confusion and memory loss which Dr. Riley notes is consistent with her depressive disorder.

[132]     I also find that Ms. Cornish’s injuries have had a significant impact on her enjoyment of life. Her own evidence, and that of her supporting witnesses, paints a compelling before and after picture of a once vibrant woman who, as Ms. Fraser-Biscoe said, is now a different person…

[139]     The evidence is clear that Ms. Cornish had previously suffered from symptoms of depression and that she had a pre-existing back injury. With respect to the depression, I am satisfied on the evidence that it was in remission at the time of the accident and that her current psychological condition was caused by the accident.

[140]     In terms of her pain condition, prior to the accident Ms. Cornish’s back condition caused some limitations with respect to her physical capacity, particularly as it related to her work. She was only able to do light work. However, I accept that the accident aggravated her condition and is the cause of her current chronic pain or Somatic Symptom Disorder.

[141]     The cause of Ms. Cornish’s confusion and memory loss is less clear as there is no neurological evidence addressing these symptoms. However, I accept Dr.  Riley’s opinion that her condition is related to her depressive disorder which I have found was caused by the accident…

[146]     Given the ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

 


Formal Offer Bested by $920 Fails To Trigger Double Costs

January 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing if double costs should be awarded where a formal settlement offer was bested by a modest basis.

In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was injured in a 2011 collision.  Prior to trial the Plaintiff provided a formal settlement offer of $44,000.  At trial this amount was exceeded by $920.  In declining to award post offer double costs Mr. Justice Bernard provided the following reasons:

[72]         I am not satisfied that the plaintiff’s formal offer was one that the defendant ought reasonably to have accepted. The offer was not broken down into its constituent elements and it was, therefore, difficult to evaluate. The plaintiff’s claim was under five heads of damage; therefore, a breakdown would have greatly assisted the defendant in evaluating the offer. Also, as in Barnes, the defendant had a legitimate defence to the plaintiff’s claim; indeed, the plaintiff sought $45,656 for loss of future earning capacity at trial and was ultimately awarded nothing under this head of damage.

[73]         As to whether the plaintiff’s formal offer provided the defendant with a genuine incentive to settle or not, the offer was for $44,000 and the plaintiff ultimately sought $120,596 at trial. The latter amount had not been set out in the pleadings and was not quantified until the start of the trial. There was, therefore, an insufficient basis for the defendant to evaluate whether the $44,000 offer was a genuine compromise or not.

[74]         The ultimate award was $44,920. Rule 9-1(6)(b) permits the court to compare the offer to settle with the final judgment. Here, the award was greater than the offer by only $920, or approximately 2%. This marginal difference suggests that little weight should be given to this factor.

[75]         As already observed, the defendant had legitimate defences to the claim and the damages for non-pecuniary damages were significantly reduced by new information that was elicited from the plaintiff’s expert witness in his trial testimony. The plaintiff also recovered nothing for his claim of lost earning capacity. It is noteworthy that there was competing expert evidence that made quantifying damages difficult. I am satisfied that in view of these matters an award of double costs would unduly punish the defendant for mounting a meritorious defence.


Deficient Wheelchair Ramp Leads to 50% Liability for Slip and Fall

January 12th, 2015

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding a defendant 50% at fault for a slip and fall for building a wheelchair ramp which failed to comply with the BC Building Code.

In today’s case (Tenhunen v Tenhunen) the Defendant was a partial paraplegic.  She built a wheelchair ramp on her property for her own use but did not build it to code.  The Plaintiff slipped and fell on this ramp while visiting and suffered various injuries.

In finding the Defendant 50% liable for the incident due to the deficient ramp Mr. Justice Johnston provided the following reasons:

[55]         I find that the defendant failed to take reasonable care for the safety of those, including the plaintiff, who she knew or ought to have known would use the lower ramp. That failure consisted of building too much slope into the ramp, not providing a guard or handrail on the outside, and not making some effort to enhance traction between 2005 and 2011.

[56]         I do not view this as a case where the defendant is relieved from a duty of care because the plaintiff willingly assumed the risk, a defence available under s. 3(3) of the Act. The defendant has not directly argued that the plaintiff willingly assumed the risks of walking down the ramp, but may have indirectly raised the question by arguing that the plaintiff’s contributory negligence is overwhelming and by choosing to proceed down the ramp, the plaintiff was the author of her own misfortune.

[57]         In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 60 (S.C.), McLachlin J., then a judge of this court, said of the statutory defence the following :

A further defence available under the Occupiers Liability Acts of both Ontario and British Columbia, arises from the provisions of those Acts that an occupier owes no duty of care to a person in respect of risks willingly accepted by that person as his own risks: Occupiers Liability Act (B.C.), s. 3(3); Occupiers’ Liability Act (Ont.), s. 4(1). To establish such assumption of the risk, Show Producers need not prove the traditional volenti defence. The standard is considerably lower. For example, in Epp v. Ridgetop Bldr. Ltd. (1978), 8 Alta. L.R. (2d) 195 (T.D.), it was held that a person who was familiar with the circumstances so that he could recognize and avoid danger, assumed the risk of that danger, with the result that the occupier was not liable. Similarly, in Schulz v. Leeside Dev. Ltd., [1978] 5 W.W.R. 620, 6 C.C.L.T. 248, 90 D.L.R. (3d) 987 (B.C.C.A.), it was held that an occupier is not liable for dangers that are known to the user or are obvious to him or are so commonly known that it can be reasonably assumed that the user will be familiar with them. In Holman v. Ellsmar Apt. Ltd. (1963), 40 D.L.R. (2d) 657 (B.C.S.C.), the plaintiff was held to have been fully aware of the condition of an unlighted sidewalk and to have fully accepted the risk of danger. The occupier was absolved of responsibility.

[58]         While the plaintiff could see she was about to walk down a damp wooden ramp, and elected to proceed on the side without a guard or handrail, she could not see that the ramp was steeper than it should have been. Notwithstanding that the standard under s. 3(3) is lower than a common law volenti defence, I conclude that the plaintiff did not willingly assume the risk of walking down a ramp that was too steep.

[59]         I do find that the plaintiff failed to take reasonable care for her own safety in one respect, however. She knew there was no outside guard or handrail when she stepped onto the lower ramp, and she knew there was a handrail at least on the inside of the ramp. Even allowing for increased slipperiness because there was more debris on the inside of the lower ramp, the plaintiff was negligent to forego the increased safety of the handrail.

[60]         I accept that the plaintiff was keeping a reasonable lookout, and otherwise taking reasonable care for her own safety.

[61]         In all of the circumstances, I apportion liability 50% to the defendant, and 50% to the plaintiff.


Non Pecuniary Damages Assessed in Mild and Moderate Brain Injury Claims

January 9th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for two separate traumatic brain injury claims.

In this week’s case (Afonina v. Jansson) the Defendant lost control of his vehicle and was involved in a single vehicle collision.  Two of his passengers suffered traumatic brain injuries, one mild and one moderate, which resulted in long term complications.

In assessing non-pecuniary damages of $195,000 for one Plaintiff’s permanent mild traumatic brain injury Mr. Justice Groves provided the following reasons:

[65]         Alla suffered broken ribs, a pneumothorax, and a number of soft tissue and similar related type injuries as a result of the accident.  She was hospitalized for a short period of time and it took a number of months to recover from the significant soft tissue injuries.  Dr. Travlos’ report reported that her emotional health continues fluctuate and this impacts her overall functioning.  Most notably, she suffered a mild traumatic brain injury which, as per Dr. Travlos’ report, will affect her for the rest of her life. ..

[70]         Having reviewed the authorities provided by counsel for the plaintiff, I find them to be within the range of appropriate orders.  The numerous cases cited suggest a range of general damages in the amount of $200,000-$225,000.  A number of the plaintiffs are within eight to ten years of Alla’s age; however, the bulk of them are people who are completely non-employable, and I find that Alla has some modest residual work ability. 

[71]         In regards to those cases provided, I find Burdett v. Eidse, 2011 BCCA 191 and Young v. Anderson, 2008 BCSC 1306 most persuasive.  In Burdett, the Court of Appeal upholds a non-pecuniary award of $200,000 where a 58 year old, formerly high functioning contractor suffered severe cognitive impairments including an inability to focus, sleep or multitask as a result of the mild traumatic brain injury caused by his motor vehicle accident caused mild traumatic brain injury.  In Young, the court awards $200,000 where a 51 year old experienced a constellation of symptoms including a mild traumatic brain injury which rendered him unable to continue in his chosen profession.

[72]         In addition to the pain and suffering from the broken ribs and soft tissue injuries, most of which had resolved within six months of the accident, I note that there are a number of significant long term damages which Alla will suffer as a result of the accident.  Her mild traumatic brain injury is significantly disabling.  She was, as noted, a trained engineer with university training in the area of finances and accounting.  She now finds herself a somewhat confused and disoriented woman, someone with an inability to multi-task to any great degree.  She has to put mechanisms in place to remind herself about her responsibilities.  Although she still has good judgment, she lacks an ability to focus and to organize.  These are matters which will plague her for the rest of her life and will make the task of working and the task of providing for one’s basic physical needs, somewhat of a challenge.  Although there is only modest physical manifestations of her injuries at this stage, the fact that her brain is not functioning as it used to is considerably disabling. 

[73]         In all of the circumstances having reviewed the case authorities provided, I fix non-pecuniary loss at $195,000. 

In assessing non-pecuniary damages at $300,000 for the second plaintiff who sustained a permanent moderate brain injury the Court provided the following reasons:

[149]     Rather, I find that much of the difficulty Alissa finds herself in is as a direct result of the accident.  At that time, she was rendered unconscious and suffered seizures.  Alissa has sustained irreversible and permanent damage as a result of the moderate traumatic brain injury she suffered in the accident.  She was young at the time of the accident and her life has been irrevocable altered in a negative way.  She will not recover from the difficulties she currently has.  They will plague her for her entire life.  They are, to a great degree, vast and all encompassing.  They affect everything she does.  Absent the injuries, I have concluded that Alissa would have successfully completed some post-secondary education in her chosen field and by 2014 would have been in the work force in a full-time capacity.  Although I do note that she does have some limited capacity to earn a modest amount of income, her former goals and chosen field of work are no longer open to her. 

[150]     In all these circumstances, the appropriate award for non-pecuniary damages is an award close to the rough upper limit.  I have concluded that $300,000 is an appropriate assessment for non-pecuniary damages. 


Parents Held Responsible For Child’s Destruction of School Property

January 8th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding parents liable for damages caused to school property by their child.

In today’s case (Nanaimo-Ladysmith School District No.68 v. Dean) the Defendant played a prank at school by attempting to attach a lock to a sprinkler head.  While doing so “the red filament inside the sprinkler head was disturbed and, as sprinkler heads are intended to operate, it immediately began spraying water.”  This caused over $48,000 in damage to school property.

The Plaintiff was found negligent and he and his parents were ordered to pay back the money based on the operation of s. 10 of the School Act which reads as follows:

If property of a board or a francophone education authority is destroyed, damaged, lost or converted by the intentional or negligent act of a student or a francophone student, that student and that student’s parents are jointly and severally liable to the board or francophone education authority in respect of the act of that student.”

Madam Justice Fitzpatrick noted this is a harsh result for the parents who had nothing to do with the damage but the legislative requriements are clear.  In reaching this decision the Court provided the following reasons:

[36]         What s. 10 seeks to accomplish is to impose statutory liability for the intentional actions of a student that cause damage to the school, which is a liability imposed beyond whatever liability there might be at common law. The section accomplishes a shifting of risk from the school to the student and that student’s parents arising from the actions of the student. I do not consider that a plain reading of s. 10 results in any other interpretation or a “reading in” of the meaning of “intentional act”, as the Deans assert…

[38]         In my view, there is no ambiguity in s. 10. It simply refers to an “intentional … act”. Accordingly, I conclude that the legislative intention, however draconian it may be, is that the student need not have intended to cause damage by his or her act. The parties agree that, if this interpretation prevails, the parents are liable by a plain reading of s. 10…

[93]         In my view, the School District has proven its case in terms of the applicability of s. 10 of the School Act to the circumstances here.

[94]         I am sure that this is a very unfortunate result for the Dean family and perhaps it will be for other families in the future. This was clearly the result of a young boy misbehaving and thinking that the only grief to come of it would be to Ben and perhaps the janitor in removing the padlock. Obviously, more dire consequences followed. However, if there is to be any change to this provision in the School Act, that is a matter for the legislature, not the courts.

[95]         The action is allowed and judgment is granted against all defendants in the amount of $48,630.47, plus court order interest and costs to be assessed.


 

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