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, 2012

BC Court Orders Production of Private Facebook Photos in ICBC Claim

April 30th, 2012

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the production of private social media data in the context of a personal injury claim.

In today’s case (Fric v. Gershman) the Plaintiff sued for damages for injuries sustained in a 2008 collision.  The Plaintiff apparently suffered from “chronic severe headaches and soft-tissue injuries” following the crash.  The Plaintiff, who was a first year law school student at the time of the crash, plead damages for various losses including diminished earning capacity.

ICBC sought production of the Plaintiff’s entire Facebook profile, vacation photos and metadata related to digital photos in her possession.  Master Bouck held that while some of this relief was too broad, relevant photos need to be disclosed and ordered production accordingly.  In doing so the Court provided the following reasons:

[54] After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55] The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56] In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57] The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58] How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59] Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60] Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.

[61] I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62] In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63] Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64] Nonetheless, the order sought by the defendants is too broad…

[70] In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71] The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72] Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[75] The plaintiff is not obliged to include commentary from the Facebook web?site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76] Costs of the application will be to the defendants in the cause.

$12,000 Non-Pecuniary Assessment For 7 month Whiplash Injury

April 30th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Penticton Registry, assessing damages for soft tissue injuries caused by a motor vehicle collision.

In last week’s case (Kingsfield v. Powers) the Plaintiff was involved in a 2007 collision in Oliver, BC.  Fault for the crash was disputed and ultimately the Court held that both parties were to blame with the Plaintiff shouldering 75% of the fault.

The Plaintiff suffered from chronic back pain although the Court did not accept this was caused by the collision.  The Court did, however, accept the Plaintiff suffered a whiplash injury which remained symptomatic for 7 months.  In assessing non-pecuniary damages at $12,000 (before the reduction for liability) Mr. Justice Barrow provided the following reasons:

[57] It follows from the foregoing that I am not satisfied that the on-going low back problems that Mr. Kingsfield is experiencing are causally related to the injuries he sustained in the motor vehicle accident.

[58] The next issue is an assessment of Mr. Kingsfield’s other injuries. They gave rise to fairly significant pain and discomfort for the first month after the accident. He was unable to do his job during that time, and when he did return to work it was to light duties for about six weeks. He continued to experience headaches until approximately mid-March and his neck was painful beyond that, perhaps until June 2008, some seven months after the accident. During this time his injuries did affect his life. He had difficulty sleeping, did not continue with his recreational activities, curling in particular, and generally felt poorly.

[59] The cases of Dolha v. Heft, 2011 BCSC 738; Morales v. Neilson, 2009 BCSC 1890; and De Leon v. Harold, 2010 BCSC 1802, are instructive in terms of quantum. All involved soft tissue injuries that resolved within a year. In Dolha the plaintiff’s significant injury was to her back and neck. Those injuries resolved within six to nine months following the accident. She was awarded $10,000 in non-pecuniary damages. In Morales the plaintiff suffered soft tissue injuries to his shoulder, neck and back. While those injuries limited his activities somewhat he was able to work seven days a week in a physically demanding job since the accident. His injuries were all resolved by a year post-accident. He was awarded $11,000 in non-pecuniary damages. In De Leon, the stoic plaintiff suffered soft tissue injuries which, due to her active participation, resolved substantially within two months of the accident and almost entirely within six months. She was awarded non-pecuniary damages of $12,000.

[60] I am of the view that an appropriate award of non-pecuniary damages in this case is $12,000. Mr. Kingsfield’s injuries significantly affected his life, including how he performed at work. Although he is entitled to compensation for past wage loss, I accept that the plaintiff takes pride in being able to do his job and his inability to do it was a source of significant anxiety while he awaited the resolution of his injuries.

The "Investigative Stage" Bar to Privilege: Plaintiffs vs. Insurers

April 30th, 2012

As recently discussed, claims for litigation privilege can fail when a defendant’s insurer collects statements and information shortly after a collision in what is deemed to be the ‘investigative stage‘.  The simple reason being that such documents typically are not created for the dominant purpose of litigation.

This analysis, however, does not necessarily translate easily to statements obtained by Plaintiffs following a crash because Plaintiffs do not share the same investigatvie responsibilites that insurers do.   This reality was highlighted in reasons for judgement published earlier this year by the BC Supreme Court, Vancouver Registry.

In the recent case (Cliff v. Dahl) the Plaintiff was injured in a 2007 collision.  She hired a lawyer to assist her with her claim.   The lawyer hired an investigator who obtained statements from multiple witnesses to the collision.

ICBC brought an unsuccessful application to force the Plaintiff’s lawyer to produce these documents.  The Plaintiff refused stating these statements were privileged.  ICBC appealed arguing these documents were obtained during the ‘investigative stage‘ and should be produced.  In dismissing the appeal Mr. Justice Smith provided the following reasons highlighting the ‘investigative stage’ and the different duties of Plaintiffs versus insurers:

[22] The Master had before him an affidavit of plaintiff’s counsel which, sketchy as it is, did say that the information was gathered and the statements were gathered for the purpose of preparing for the plaintiff’s case in this action, as opposed to investigating the plaintiff’s case, and the Master apparently inferred from that that litigation was the dominant purpose. Sketchy as that evidence was, I cannot say that the Master was clearly wrong in drawing that conclusion.

[23] Defence counsel refers to a statement of the Master in which he says in effect that it is very hard to see how statements gathered by plaintiff’s counsel once retained would not meet the dominant purpose test. That is probably too broad a statement and certainly if the Master said that it was a general rule of law, that would be a question of law to be reviewable but in my view that is not the basis of the Master’s decision. He made a finding on the evidence before him.

[24] In that regard, I note that while the evidence from plaintiff’s counsel is sketchy, plaintiff’s counsel in this situation is in a somewhat different position from the insurance adjusters whose determination of dominant purpose is often at issue in other cases such as Hamalainen, supra.

[25] The point at which a plaintiff’s counsel moves from the stage of investigating and considering the possibilities of litigation to a firm decision to proceed and the subsequent efforts that have a dominant purpose of litigation depends of course on the information in counsel’s possession. Much of that information must necessarily come directly from the plaintiff and the plaintiff’s counsel must balance the need to show the dominant purpose of the document or the witness statement with the restrictions placed upon him or her by solicitor/client privilege.

[26] I infer from the material before me that the Master reviewed the evidence and found it sufficient to establish a dominant purpose. Whatever decision I might have made had the matter come before me, I cannot say that the Master was clearly wrong.

[27] Those are my reasons for judgment and so the appeal is dismissed.

Of note, this result was revisited after the witness subsequently became a party to the litigation.

ICBC Internet Domain Name Challenge Fails

April 27th, 2012

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the challenge of the use of “icbc” in a domain name not owned or operated by ICBC.

In today’s case (ICBC v. Stainton Ventures Ltd.) ICBC alleged that the use of ‘icbc’ in a domain name used as a marketing tool for personal injury lawyers was misleading and in breach of ICBC’s intellectual property rights.  Mr. Justice Grauer dismissed these aspects of the claim finding that websites that use the name ICBC in their domain that comment on ICBC would not confuse an “average customer of normal intelligence“.  Mr. Justice Grauer provided the following reasons:

[26] Anyone familiar with motoring in British Columbia would, I expect, conclude that “” was probably about the Insurance Corporation of British Columbia.  ICBC is, after all, a very large institution that is the subject of widespread public commentary.  In this context, would British Columbians be likely to mistake “” for ICBC’s official mark?  I think not.  More probably, I find, they would take it as identifying the subject-matter of the site, not whose site it is.

[27] I therefore conclude that the defendant has not acted contrary to sections 9 and 11 of the Trade-marks Act in its use of the website/domain name “”.  The same logic applies to the defendant’s use of the domain names <>, <> and <>.

[28] In my view, the defendant’s use of the acronym “ICBC” throughout its website also does not contravene the Trade-marks Act.  The defendant does not use that acronym as a “trade-mark or otherwise” in the sense required, which is the use of the mark in connection with its business in some way that is intended to identify and distinguish its products.  Rather, it simply uses the acronym to identify the plaintiff, as thousands do every day, and as I do in these reasons…

[47] As the Court of Appeal observed in Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., 2011 BCCA 69, 14 B.C.L.R. (4th) 358 at para. 35, “the consumer must be given credit for having normal intelligence.”

[48] In the context of British Columbia’s universal automobile insurance scheme, I am satisfied that the average customer of normal intelligence would not be led astray, and would have no difficulty recognizing that would probably relate to how to deal with ICBC in an arm’s length or even adversarial sense, rather than in a manner endorsed by ICBC.

[49] I conclude that the plaintiff’s claim based upon the common law and statutory tort of passing-off must be dismissed.

$35,000 Non-Pecuniary Assessment For SI Joint Injury With Flare-Ups; LVI Defence Rejected

April 27th, 2012

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a sacroiliac joint injury caused by a motor vehicle collision.

In last week’s case (Bartel v. Milliken) the Plaintiff was involved in a 2008 collision.  Fault was admitted by the Defendant.  Although the Defendant challenged the Plaintiff’s credibility arguing she “is exaggerating her injuries and their effect” the Court rejected this submission and found the Plaintiff suffered various soft tissue injuries which continued to flare with activity.  In assessing non-pecuniary damages at $35,000 Madam Justice Gerow provided the following reasons:

[26] It is apparent from a review of the whole of the evidence that Ms. Bartel suffered injuries to her neck and back in the accident which had resolved for the most part by February 2009, although she was still experiencing intermittent pain in her sacroiliac joint areas. Since then she has had flare-ups, the October 2009 incident being the most significant. Although there is some evidence of ongoing shoulder problems, the evidence is that Ms. Bartel suffered from shoulder problems prior to the accident. There is insufficient evidence to conclude that her ongoing shoulder problems are as a result of the motor vehicle accident.

[27] Both Dr. Kelly and Dr. le Nobel are of the opinion that Ms. Bartel’s prospect for full recovery is guarded. However, Dr. le Nobel is of the opinion that Ms. Bartel may have significant improvement if not complete resolution of her symptoms with injections into her back and an exercise program.

[28] Based on the evidence, I have concluded that Ms. Bartel suffered a moderate soft tissue injury to her neck, back and sacroiliac joint which resolved for the most part within seven months with occasional flare-ups. The injuries Ms. Bartel suffered have restricted her ability to engage in gardening and walking in the manner she could prior to the motor vehicle accident. It is likely there will be ongoing restrictions on her gardening as a result of the injuries…

[35] Having considered the extent of the injuries, the fact that the symptoms were largely resolved within seven months with occasional flare-ups and the ongoing restrictions on Ms. Bartel’s gardening, as well as the authorities I was provided, I am of the view that the appropriate award for non pecuniary damages is $35,000.

Another noteworthy aspect of the judgement was the Court’s rejection of the so called LVI defence.  The Defendant argued that since there was modest vehicle damage the injury itself was modest.  In rejecting this submission the Court provided the following comments:

[23] Finally, the defendants point to the fact that the accident was not severe enough to cause the ongoing symptoms Ms. Bartel complains of. The defendants’ proposition that a low velocity accident cannot cause any significant injury to a plaintiff has not been accepted in a number of cases, including Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.); Lubick v. Mei, 2008 BCSC 555; and Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053. As stated in Gordon at paras. 4 and 5:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. it is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slip and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

[24] Although the severity of the accident is a factor that should be taken into consideration when determining whether Ms. Bartel suffered injuries in the motor vehicle accident and the extent of those injuries, it is not determinative of either issue. Rather the whole of the evidence must be considered in determining those issues.

New Practice Direction Issued Clarifying Masters Jurisdiction

April 26th, 2012

The BC Supreme Court released Practice Direction 34, effective April 25, 2012, clarifying the matters in which a Master does and does not have jurisdiction.

The most notable change relates to granting Masters authority to preside over Trial Management Conferences which is consistent with a recent amendment, also in force on April 25, 2012, to Rule 12-2(2).

Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules

April 26th, 2012

Unreported reasons for judgement recently came to my attention addressing, for what I believe is the first time since the New Rules came into force, the issue of whether a party can elect trial by jury when a new Notice of Trial is issued if they failed to so elect in the fist instance.  In short the Court held this is not permitted.

In the recent case (Hung v. Sellars, BC Supreme Court Duncan Registry) the Plaintiff was injured in a motor vehicle collision.  The case was set for trial and neither party filed a notice requiring trial by jury.  The trial was adjourned by consent.   The Plaintiff filed a new notice of trial (as is required by BC Supreme Court Practice Direction 25).  The Defendant then filed a notice requiring trial by jury.

The Plaintiff brought an application to strike the Jury Notice.  Mr. Justice Bracken granted the application noting that the Rules only allow a jury notice to by filed with the initial notice of trial.  In doing so the Court provided the following reasons:

[13]  As noted, the authorities have held the election whether the trial be by judge alone or by judge sitting with a jury contemplates that the election will be made promptly after the first notice of trial.  Some latitude is possible where a party seeks to make an election outside the tie limited by the rules in certain restricted circumstances.

[14]  In some cases, such as removal from the fast track process where there is no right of jury trial, the parties can make the eelction upon a new notice of tiral being filed…

[15] In this case, a jury notice, in accordance with the principle in Hoare v. Firestone and Pelech v. Pelech, could have been filed and served after the first notice of trial that was issued in this action.  The jury notice should have been filed and delivered within the rules after the date of the first notice of trial…Therefore the notice requiring trial by jury in this case…is struck as being filed outside the tine allowed by Rule 12-6.

As of today’s date this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$60,000 Non-Pecuniary Assessment for Chronic, Partially Disabling Whiplash Injury

April 26th, 2012

Reasons for judgement were released earlier this month by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic soft tissue injury sustained in a motor vehicle collision.

In the recent case (Noon v. Lawlor) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the offending motorist focusing the trial on the value of the case.  The Plaintiff sustained a chronic soft tissue injury to his neck and upper back.  The injury caused difficulties with the heavier aspects of the Plaintiff’s job as a journeyman plumber and his symptoms were expected to continue into the future.

In assessing non-pecuniary damages at $60,000 Mr. Justice Halfyard provided the following reasons:

[205] I find that the plaintiff sustained injury to the soft tissues of his neck and upper back, as a result of the collision of January 22, 2009. The plaintiff also sustained minor injuries to his forehead and to his low back. The head injury resolved in about three weeks and the plaintiff had recovered from his low back injury, within six months. The plaintiff continued to experience headaches associated with his neck injury, but the headaches had diminished in about a year to the point where they occurred only occasionally, and were not disabling.

[206] The medical experts did not offer an opinion as to the severity of the whiplash injury to the plaintiff. I find that the impact of the collision was violent and that the forces exerted on the plaintiff’s body were capable of causing significant injury. On all of the evidence, I find that the injury was at least moderate in severity.

[207] There is some medical evidence which I accept and which, tends to confirm the plaintiff’s assertion that he has been experiencing ongoing symptoms of pain. The findings of tenderness on palpation and restricted range of motion in the plaintiff’s neck are partly objective and partly subjective. But they do provide some support for the plaintiff’s trial testimony on this issue. But, in my view, the medical evidence does not confirm the plaintiff’s trial testimony as to the degree of the pain that he has been experiencing, and only partly confirms his evidence as to the extent to which his pain has impaired his physical capacities. In a case of this kind, I doubt whether any medical expert could express any conclusive opinion on these issues. To a considerable extent, medical experts must accept and rely on the plaintiff’s complaints as being true…

[225] I find that there is a substantial possibility that the plaintiff will continue to experience his present symptoms and their associated effects, indefinitely. There is no suggestion that the plaintiff’s condition will deteriorate in the future. The plaintiff is still a young man, and in my opinion, the evidence establishes a substantial possibility that he will achieve significant improvement over time. But there is also a substantial possibility that the plaintiff will never again be able to do the heavy overhead work required of a sprinkler fitter, on a regular basis…

[228] The plaintiff must be compensated for the amount of pain and suffering and loss of enjoyment of life that he has incurred to date, as well as the amount that he will experience in the future, as the result of the injury caused by the defendant’s negligence. Having regard to the findings of fact that I have made, it is my opinion that the plaintiff should be awarded $60,000 as damages for non-pecuniary loss, and I so order.

More on ICBC Part 7 Benefits Deductions in Personal Injury Lawsuits

April 26th, 2012

As previously discussed, if you are insured with ICBC the amount of Part 7 Benefits that you are entitled to must be deducted from tort trial damages due to the operation of section 83 of BC’s Insurance (Vehicle) Act.   This deduction can be made even if you don’t apply/receive your Part 7 benefits.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing this deduction with respect to various damage awards made at trial.  In this week’s case (Cikojevic v. Timm) the Plaintiff was awarded significant damages at trial after sustaining a permanent brain injury in a collision.  This week’s supplemental reasons for judgement are worth reviewing for the Court’s discussion of deductibility of the following items:

  • massage therapy
  • chiropractic treatments
  • medications
  • occupational therapy
  • psychological counselling
  • speech therapy
  • vocational counselling
  • transportation costs

Driver Found 10% At Fault for Timing a Green Light

April 25th, 2012

As previously discussed, having the right of way does not automatically result in a driver being found faultless for a collision.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Matheson v. Fichten) the Plaintiff was a passenger in a Northbound vehicle in a designated left hand turn lane.  The advance green arrow ran its course resulting in a green light for North and south bound traffic.  The driver proceeded with his turn despite no longer having the advance green arrow.

At the same time the Defendant was driving Southbound in the curb lane.  He was several car lengths back from the intersection when his light turned green.  Other Southbound vehicles began to accelerate but then stopped realizing the Plaintiff vehicle was turning.  The Defendant did not stop and entered the intersection when the collision occurred.

Despite having the right of way the Southbound Defendant was found 10% at fault for the collision.  In coming to this assessment Madam Justice Smith provided the following reasons for judgement:

[57] I find that the Bahniwal vehicle was travelling at the speed limit of 50 kilometres per hour, or perhaps a bit less, as it proceeded up the southbound curb lane.  I accept Mr. Kaler’s evidence that Mr. Bahniwal had slowed when the light ahead was red, but then resumed speed after the light turned green, two to three car lengths from the intersection.  I find that the presence of vehicles in the two lanes to his left obscured Mr. Bahniwal’s view of what was occurring in the intersection except for the portion immediately in front of him.  The vehicles in the two lanes to Mr. Bahniwal’s left began to move forward, but they stopped almost immediately.  Mr. Bahniwal overtook those vehicles and passed them on the right, entering the intersection on a green light but without noting that the vehicles to his left had stopped, or taking any particular precaution before entering the intersection…

[61] I have found as fact that Mr. Bahniwal proceeded through the intersection on a green light.  Accordingly, he had the right of way.  His was the dominant vehicle; Mr. Fichten’s vehicle was in the servient position.

[62] The question in the end is whether either Mr. Fichten or Mr. Bahniwal  or both, was in breach of the duty of care he owed to the plaintiff.  I take into account the Motor Vehicle Act provisions as informing the requisite standard of care (Ryan v. Victoria, [1999] 1 S.C.R. 201 at para. 29).

[63] It is clear that Mr. Fichten was negligent in making his left turn when it was unsafe to do so after the light had changed, and in particular by crossing the curb lane of southbound traffic without checking that it was free of oncoming vehicles.

[64] Turning to Mr. Bahniwal, what is the duty of a driver who enters an intersection in the circumstances that faced him?  He was in the curb lane, his view of the intersection was blocked by other vehicles, and those vehicles, having entered the intersection, had subsequently stopped…

[78] In my opinion, when the light facing Mr. Bahniwal turned green and the vehicles on his left proceeded forward and then stopped, Mr. Bahniwal had the opportunity to recognize, and should have recognized, that something had caused them to stop.  His approach into the intersection should then have been tempered with caution, even though he had the light in his favour and had built up some momentum.  He did not take that approach but, instead, proceeded at the speed limit into the intersection.  His vehicle was in the dominant position, but he was not entitled to overlook a clear indication of a possible hazard in the fact that the vehicles to his left had stopped very soon after having begun to move.  The traffic was not backed up in the southbound lanes, as it was inRobinson v. Wong, and the timing of the vehicles stopping was inexplicable from his vantage point.  A careful driver would have reacted to the possibility that a left-turning vehicle, a pedestrian, or some other hazard was still in the intersection.

[79] I find that Mr. Bahniwal was in breach of his duty of care, and allocate liability 10% to him and 90% to Mr. Fichten.