$170,000 Non-Pecs for MTBI, Impaired Driver Found “Grossly Negligent”
Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.
In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant. ¬†The Defendant had just left a pub and had a blood alcohol level well over the legal limit. ¬†the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.
As a result of this criminal conviction the Defendant was in breach of his ICBC insurance. ¬†He defended the lawsuit personally and ICBC defended as a statutory third party.
The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him. ¬† Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident. ¬†Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption ¬†of alcohol that his actions in so doing were not only negligent, but grossly negligent“.
The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash. ¬†In reaching this conclusion Mr. Justice Davies reasoned as follows:
¬†¬†¬†¬†¬†¬†¬†¬†The question is whether Mr.¬†Eggleston‚Äôs own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle‚Äôs brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.
¬†¬†¬†¬†¬†¬†¬†¬†In all of the circumstances I find, as did Kirkpatrick¬†J. in¬†Laface,¬†that Mr.¬†Watson‚Äôs conduct was so unforeseeable, and the risk of injury from Mr.¬†Eggleston‚Äôs failure to take more care so unlikely that ‚Äúit is simply not appropriate‚ÄĚ to find that Mr.¬†Eggleston was contributorily negligent.
¬†¬†¬†¬†¬†¬†¬†¬†If I am wrong in that conclusion, based upon the analysis and conclusions of Esson¬†J.A. in¬†Giuliani, I would assess Mr.¬†Eggleston‚Äôs fault in failing to avoid the collision to be no more than 5%.
The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI). ¬†In arriving at this figure the Court provided the following reasons:
¬†¬†¬†¬†¬†After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr.¬†Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June¬†9, 2009.
¬†¬†¬†¬†¬†I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…
¬†¬†¬†¬†¬†In addition to the mild traumatic brain injury that I find has been the primary cause of Mr.¬†Eggleston‚Äôs past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr.¬†Watson‚Äôs negligence caused the following physical injuries which Mr.¬†Eggleston has suffered and from some of which continues to suffer:
1)¬†¬†¬†¬†¬†¬†¬†¬†Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr.¬†Travlos.
2)¬†¬†¬†¬†¬†¬†¬†¬†A traumatic umbilical hernia which was successfully operated upon on May¬†29, 2007.
3)¬†¬†¬†¬†¬†¬†¬†¬†Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December¬†5, 2007, and which in the opinion of Dr. Leith, require further surgery.
4)¬†¬†¬†¬†¬†¬†¬†¬†Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr.¬†Palfi and in respect of which I accept Dr.¬†Leith‚Äôs opinion of June¬†2, 2009.
¬†¬†¬†¬†¬†In addition to those specific physical injuries, I accept the evidence of Dr.¬†Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr.¬†Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr.¬†Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.
¬†¬†¬†¬†¬†In determining the appropriate award to compensate Mr.¬†Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr.¬†Watson‚Äôs negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.
¬†¬†¬†¬†¬†I have also considered the pain Mr.¬†Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.
¬†¬†¬†¬†¬†In addition, I have considered the situation that has existed since March of 2008 when Mr.¬†Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.
¬†¬†¬†¬†¬†Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr.¬†Eggleston but which are of course dependent on their unique fact situations.
¬†¬†¬†¬†¬†I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr.¬†Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr.¬†Watson‚Äôs negligence.
Tags: breach of insurance, drunk driving, Eggleston v. Watson, impaired driving, impingement syndrome, mild traumatic brain injury, Mr. Justice Davies, MTBI, pedestrian accidents, rotator cuff tear, section 182 BC Motor Vehicle Act, torn bicep tendon, umbilical hernia, Walking on the Road