ICBC Law

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.

Archive for April, 2011

Can the BC Supreme Court Order a Plaintiff to Travel Out of Province for an Independent Medical Exam?

April 29th, 2011

Further to my post discussing court ordered medical exams and travel, I’ve recently had the opportunity to review whether the current Supreme Court Rules place limits on Court ordered travel for independent medical examinations.  The line, it seems, is drawn at out of Province “medical practitioners“.

While I’m not aware of any cases addressing this issue under the current rules, the issue was addressed by the BC Court of Appeal under the former Rule 30(1) which reads almost identically to the current Rule 7-6(1).

In the leading case under the former rules (Hewitt v. Buell) the BC Court of Appeal held that orders for medical examinations are to be limited to BC physicians because “the phrase (medical practitioner)…as it appears in Rule 30(1) can have no meaning other than one entitled to practice in British Columbia.  This is what the chambers judge concluded and in my view he was right.

The BC Court of Appeal went on to hold that applications for out of Province examinations with “other qualified persons” (ie- experts other than medical practitioners), can be ordered in rare circumstances.

I’ve now had the opportunity to cross reference this judgement with the new Rules of Court.  It appears that the out of Province restriction for exams with “medical practitioners” remains in place.  The reason being is that Rule 7-6(1) reads almost identically to the former Rule 30(1).  Additionally, the current Rules of Court do not define “medical practitioner” requiring the Court to turn to Rule 1-1(2) which states that “Unless a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act Apply to these Supreme Court Civil Rules“.

“Medical Practitioner” is defined at section 29 of the BC Interpretation Act as “a registrant of the College of Physicians and Surgeons of British Columbia entitled under the Health Professions Act to practice medicine and to use the title ‘medical practitioner’.”

So, if an out of Province medical exam is contested, a good place to start in opposing a defence application is to review whether the out of Province physician is a registrant of the BC College of Physicians and Surgeons.


BC Court of Appeal Finds There is only a "Single Standard" Under the Occupier's Liability Act

April 28th, 2011

Reasons for judgement were released today by the BC Court of Appeal discussing the standard of care for Occupier’s Liability lawsuits in BC.

In today’s case (Charlie v. Canada Safeway Limited) the Plaintiff slipped and fell near a display of flowers while shopping at Safeway in Duncan, BC.  The flowers were kept in water and when customers picked up the flowers for purchase they sometimes “could drip (water) on the floor”.  She was injured and sued for damages.

During her fall the Plaintiff knocked over one of the buckets of flowers spilling a considerable amount of water on the floor.  The Plaintiff could not offer direct evidence that dripped water made her fall but inferred that this was the cause of her fall.  At trial the Court refused to make this inference and dismissed the lawsuit.  The BC Court of Appeal dismissed the appeal finding there was no error in law in the Court refusing to draw the same inference the Plaintiff made.

The Plaintiff went further and argued that “there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk.

The Court of Appeal rejected this argument and in doing so made it clear that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  The Court provided the following reasons:

[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.


Can Lawyers Swear Affidavits In Support of Their Clients Interlocutory Applications?

April 28th, 2011

In British Columbia the short answer is yes.  Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic at length.

In last week’s case (The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency) the Plaintiff’s lawyer filed an affidavit in support of two applications of the Plaintiff.  The Defendant objected to this arguing that it was an improper practice and breached the principles set out in the Canadian Bar Association’s Code of Professional Conduct and the BC Professional Conduct Handbook.  Mr. Justice Harris disagreed and provided the following helpful reasons:

[15] No authority was cited to me in that establishes a binding general rule that solicitors cannot not swear affidavits in interlocutory proceedings in which they or their firm are counsel. To the contrary, even the professional guidelines support such a practice within limits. The case law also indicates that counsel is legally competent to swear an affidavit, even in relation to matters in dispute, although that practice is to be discouraged: see, National Financial Services Corporation v. Wolverton Securities Ltd. (1998), 52 B.C.L.R. 302 (S.C.) at para. 7.

[16] The Canadian Bar Association Code of Professional Conduct qualifies its statement of principle about lawyers swearing affidavits by referring to local rules or practice authorizing lawyers to do so. In British Columbia it is the practice for counsel to swear affidavits, on occasion, particularly in respect to uncontroverted matters or matters relevant to the interlocutory issue before court. The practice obviously carries risks, not least that a solicitor may be cross-examined on the affidavit, waive privilege or may succeed inadvertently in putting his or her credibility in issue. There are many good reasons for counsel to take great care in swearing affidavits in cases in which they are counsel.

[17] Nonetheless, there are occasions when the use of counsel affidavits is justified as a matter of practice. Sometimes, at least in respect of interlocutory matters, the evidence of counsel may be the best evidence available. It may often be economical and timely to have counsel swear an affidavit in support of interlocutory application. Introducing a legal rule that upset this practice would defeat the object of the Supreme Court Civil Rules to secure the just, speedy and inexpensive determination of every proceeding on its merits including conducting the proceeding in ways proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding.

[18] Equally, the fact that the affidavit contains some evidence on information and belief provided to the affiant by Mr. Sanderson who then commissioned the affidavit and argued the matter in court does not in itself compel the conclusion that the affidavit is inadmissible. I was not taken to any particular examples of information provided by Mr. Sanderson that gave rise to a concern that counsel were merely attempting to circumvent the professional guideline that counsel should not speak to their own affidavits, particularly if the subject matter is contentious.

[19] In my view, it would be a mistake to recognize or create a special rule requiring the rejection of affidavits sworn by counsel if those affidavits contain both admissible and inadmissible evidence. Insofar as admissibility is concerned, solicitors’ affidavits are governed by the same rules as any other affidavit. Inadmissible content may be ignored or formally struck, but the affidavit as a whole need not be rejected.


New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's

April 27th, 2011

Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.

In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence.  The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s.  Mr. Justice Smith held that such practice was permitted under the Rules.  The Court provided the following reasons:

[1] At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010.  I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.

[2] The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010.  Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.”  These include, at subparagraph (l), an order adjourning the trial.  However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…

[7] I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects.  No such restriction appears in Rule 12-2.  The Rule prohibits hearing applications that require affidavit evidence.  It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[8] The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”

[9] Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness.  The trial brief is an unsworn statement of counsel or the self-represented party.  The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC.  That is the only basis on which the orders permitted by the Rule could be made.

[10] In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate.  That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment.  That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted.  Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.

[11] However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance.  For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial.  If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….

[18] In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC.  In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.


$60,000 Non-Pecuniary Damage Assessment for SI Joint Ligament Injury

April 26th, 2011

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic Sacroiliac Joint Ligament Injury as a result of two motor vehicle collisions.

In today’s case (Keenan v. Fletcher) the Plaintiff was involved in 4 separate collisions.  She sued for damages and all four claims were heard together.  The Court found that the Plaintiff suffered no injuries in the first two crashes and dismissed those lawsuits.

The Court did, however, find that the Plaintiff suffered injuries in the third and fourth collision, most notably a chronic ligamentous injury to the right sacroiliac joint.  Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $60,000 although this assessment was then reduced by 20% to take into account various other factors which contributed to the Plaintiff’s difficulties.  In assessing damages Mr. Justice Gaul provided the following reasons:

[98] Under the heading “Diagnosis”, Dr. Hershler opined:

The history and physical findings are consistent with an injury to the right sacroiliac joint. The injury is probably primarily ligamentous, however there is evidence of mechanical malalignment and increased tightness and tenderness in the right paraspinal, as well as increased tightness in the right leg secondary to this injury….

[119] The injuries to Ms. Keenan’s neck and shoulder have resolved themselves to a considerable degree. To a lesser extent, the injury to Ms. Keenan’s lower back has also improved. I find that the improvement in Ms. Keenan’s physical condition is directly attributable to her intense drive and will to get better. I also find that it was though this sheer determination that Ms. Keenan has been able to manage and limit the impact of these injuries on her life.

[120] Given the passage of time since the injuries developed and the fact that Ms. Keenan continues to experience low level pain and discomfort in her back on a reasonably regular basis and the occasional episode of intense pain, I am persuaded the injury to Ms. Keenan’s back is the key and principal injury that has resulted from MVA #3 and MVA #4. As I have noted, Ms. Keenan is a determined person and I have no doubt that her strength of character has been and will continue to be one of the reasons why she manages so well in spite of the discomfort she experiences in her back.

[121] In my opinion, the evidence supports the conclusion that Ms. Keenan will most likely experience the occasional severe flare-up of her back pain which will likely have a negative impact upon her ability to perform her police duties, including voluntary overtime….

[148] I am satisfied that this pain has on occasion had a reasonably pronounced impact upon Ms. Keenan’s ability to enjoy all facets of her life. In the period of time immediately after MVA #4, the pain was practically constant and debilitating. Over time the pain has become more tolerable and manageable. The medical evidence points to the fact that this back pain has decreased with the passage of time; however, there is a real possibility that it will continue to flare-up and cause Ms. Keenan significant difficulties for her at work as well as at home…

[151] I am satisfied that an award of $60,000 appropriately compensates Ms. Keenan for the non-pecuniary damages she has suffered as a result of MVA #3 and MVA #4. Applying the 20% discount for the contingencies I have previously noted, I award Ms. Keenan $48,000 for her non -pecuniary damages.


Sanderson and Bullock Orders: Rule 14-1(18)

April 26th, 2011

(Please note that the BC Court of Appeal granted leave to Appeal the below discussed decision.)

When a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under former Rule 57(18) to order that the unsuccessful defendant pay the successful defendants costs.  Depending on the way a court goes about doing this will label the result a “Sanderson Order” or a “Bullock Order“.  This rule has been reproduced in the New Rules of Court at Rule 14-1(18) and the first judgement I’m aware of considering this discretion under the New Rules was released last week by the BC Supreme Court, Nanaimo Registry.

In last week’s case (Brooks-Martin v. Martin the Plaintiff was injured in a 2005 collision in Saanich, BC.  The Plaintiff was travelling in the “C” position behind a motorcycle operated by her husband who was travelling in the “A” position.   Her husband unexpectedly cut in front of her.  In trying to avoid a collision with her husband she lost control, fell down onto the road and was injured.

(Accident Reconstruction Software courtesy of SmartDraw)

At trial Mr. Justice Halfyard found the Defendant 70% at fault and the Plaintiff 30% at fault.  The Plaintiff also sued another Defendant although they were found faultless.  The Plaintiff asked for a Sanderson order to minimize her costs consequences following trial although this application was dismissed.  Prior to doing so Mr. Justice Halfyard provided the following test required to get a Sanderson or Bullock order:

[6] The court’s power to make the order sought by the plaintiff is set out in Rule 14-1(18), which states:

(18)  If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant.

[7] In order to justify the exercise of discretion in his or her favour, a plaintiff must establish two elements, namely:

a) that it was reasonable for the plaintiff to have sued the successful defendant together with the unsuccessful defendant; and

b) that there was some conduct on the part of the unsuccessful defendant (such as asserting that the successful defendant was the culprit in the case or committing some act or acts which caused the plaintiff to bring the successful defendant into the litigation) which makes it just to require the unsuccessful defendant to pay the costs of the successful defendant.

See Grassi v. WIC Radio Ltd. 2001 BCCA 376 at paras 32-34; Davidson v. Tahtsa Timber Ltd. 2010 BCCA 528 at paras 53-54.

[8] The first element is a threshold requirement for the exercise of the court’s discretion. This question is looked at mainly from the perspective of the plaintiff. But if the plaintiff has alleged independent causes of action against the two defendants and if these two causes of action are not connected, the plaintiff will not be able to meet the threshold test. See Robertson v. North Island College Technical and Vocational Institute (1980), 26 B.C.L.R. 225 (C.A.) at paras 23-24; Davidson v. Tahtsa Timber Ltd. at para. 52.


You're Fired! Changing Lawyers During a BC Supreme Court Lawsuit

April 25th, 2011

(photo taken by  Gage Skidmore)

As previously discussed, sometimes lawyers and clients have irreparable differences and it’s necessary to move on either by getting a new lawyer or representing yourself.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing the different formal steps that could be taken under the Rules of Court  during an active lawsuit when a client and a lawyer have a parting of ways.

In this week’s case (Sandhu v. Household Reality Corporation Limited) the Plaintiffs and their lawyer had a falling out in the course of a lawsuit.  An application was brought to declare that the lawyers were no longer the “lawyers of record for the plaintiffs“.  In granting the application Mr. Justice Barrow provided the following concise and useful summary of the application of the Rules of Court when a fracture in the lawyer/client relationship occurs during an active BC Supreme Court lawsuit:

[7] The Rules of Court set out what amounts to a code governing how lawyers may cease to be the lawyer of record and their office the address for delivery in an action. There are essentially three ways that can be accomplished. The first and most common way is by the client filing a notice of intention to act in person or hiring another lawyer who files a notice of change of lawyer, the second is by the retiring lawyer filing a notice of intention to withdraw, and the third is by court order. The second method is intended to avoid an unnecessary court application in circumstances where, for one reason or another, the lawyer-client relationship has fractured but the client has not retained another lawyer or filed a notice of intention to act in person. It has the effect of putting the onus on the client to either object to the lawyer’s withdrawal or acquiesce in that result, in which case the address for delivery becomes the client’s address as set out in the notice.

[8] In addition to providing the method for changing lawyers, the rule operates such that the party whose lawyer is retiring will always have an address for delivery so that opposing parties, who have no interest in becoming embroiled in disputes that have nothing to do with them, are able to proceed with the litigation. That is the regime. It is set out in Rule 22-6. In the vast majority of cases, it works well. Mr. Merchant ignored this regime in this case.


The New Rules of Court and the Prohibition of Expert Advocacy

April 22nd, 2011

While expert ‘advocacy‘ has always been prohibited, Rule 11-2 of the BC Supreme Court Civil Rules expressly imposes a duty on expert witnesses “to assist the court” and “not to be an advocate for any party“.  Experts need to specifically acknowledge that they are aware of this duty, author reports in compliance with this duty and testify in conformance with this duty.

Despite this expert advocacy still exists as was demonstrated in reasons for judgement released this week in the BC Supreme Court.

In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 seperate collisions.  He sued for damages with his most serious allegation being a Traumatic Brain Injury (TBI).  Ultimately the TBI claim was dismissed with Mr. Justice Harvey finding that the Plaintiff’s chronic complaints were more plausibly explained by factors other than brain trauma.  Prior to doing so, however, the Court made the following critical findings of the expert retained by ICBC in the course of defending the claims:

[251] Dr. Rees is a neurologist. Since approximately 2004 his practice has been largely comprised of examining persons with suspected brain injuries on behalf of defendants, principally ICBC.

[252] In that period Dr. Rees had not examined a litigant whom he found to have suffered an MTBI where the symptoms lasted beyond two years. He opined that the plaintiff had not sustained an MTBI in the first accident or any of those which followed in August 1999…

[257] Dr. Rees initially testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100 neurons in the human brain. I am satisfied that Dr. Rees was in error in this regard. Although counsel suggested, and Dr. Rees ultimately adopted, 126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5, counsel subsequently advised the Court of his own mathematical error resulting in agreement that the actual number was 126,000. While the difference between these numbers is significant, it still appears that Dr. Rees was outside his area of expertise and was “guessing at the degree of resolution.

[258] Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI

[259] A major difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the plaintiff experienced a “credible event” which would account for brain trauma. During vigorous cross examination Dr. Rees acknowledged that he could not offer an opinion on the tensile strength of brain matter, and that an acceleration/deceleration impact could damage muscle tissue which he acknowledged is denser than brain matter.

[260] Dr. Janke, the other defence expert, and Dr. Ancill were both of the opinion that a force far less than that described by Dr. Rees could result in an MTBI.

[261] Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…

[316] I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.

As recently discussed, the UK Supreme Court stripped expert witnesses of immunity exposing them to the threat of lawsuits for negligent services.  The law in BC currently does not permit this making judicial criticism the strongest remedy for experts who ignore the duties set out in the Rules of Court,


Plaintiff Unsuccessfully Sues for Being Run Over By Car While Cleaning It

April 21st, 2011

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.

In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:

[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.


$50,000 Non-Pecuniary Damage Assessment for Sacroiliac Joint Injury

April 20th, 2011

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Sacroiliac Joint injury following a motor vehicle collision.

In today’s case (Day v. Nicolau) the Plaintiff was injured in two separate collisions.  Fault for the crashes was admitted.  She suffered various soft tissue injuries the most serious of which was a sacroiliac joint injury.  By the time of trial her symptoms of pain persisted and were not expected to have further meaningful improvement.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Wong provided the following reasons:

[34] From the evidence Ms. Day sustained a soft tissue injury in the two motor vehicle accidents.  She has not maintained the exercise and core strengthening regimen recommended by her treating doctors.  Without proper back care, the potential for flare ups and complications exist.

[35] It is unclear what state of recovery function Ms. Day could have obtained with proper back care and exercise.  All doctors indicate in their reports the importance of back care exercise.  Though their prognosis is guarded they seem to imply that with proper care there is still potential for return to functionality with only intermittent flare ups. ..

[46] Ms. Day is a 28 year old woman who has a chronic injury to her lower back and related sacroiliac joint injury and a less serious lasting injury to her neck and right shoulder.  She has experienced pain, discomfort and some limitations to enjoyment of her previous active life for almost five years and her future condition is guarded.

[47] I fix the non-pecuniary award at $50,000.