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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 July, 2013

More on Collisions Involving Emergency Vehicles

July 31st, 2013

 

UPDATE June 5, 2014 - This decision was overturned on appeal with the Defendant being found fully at fault

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As previously discussed, when an emergency vehicle is responding to a call and is involved in a collision fault does not automatically rest with the other vehicle.   All of the circumstances surrounding the collision must be examined.  Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing this area of law.

In last week’s case (Maddex . Sigouin) the Defendant was travelling a few car lengths behind the Plaintiff police officer.  The Plaintiff detected a speeding oncoming vehicle, activated his lights, and attempted a U-Turn at the approaching intersection.   To do so he had to cut across from the left hand lane in which he was travelling, through the designated left had turn lane and into his turn.  The Defendant did not have time to react safely, hit his brakes and also turned into the left hand turn lane in the hopes of avoiding contact.  Ultimately the Court found both motorists equally responsible for the crash.  In reaching this decision Mr. Justice Williams provided the following reasons:

[43]         It is my conclusion that Mr. Sigouin was not paying sufficient attention as he was driving and that he was positioned too close behind the police car, taking into account the speed and the limited maneuverability of his vehicle. By the time he recognized the necessity to react to the police car slowing in his lane, it was too late to safely slow down behind that vehicle. As a result, he was forced into an emergency maneuver which entailed passing the police vehicle. He did not believe it was safe to pass on the right and so he elected to pass on the left which necessitated him moving into the left-turn bay to get past the police car. It is clear that he did not see the flashing emergency lights and react to them in a timely and responsive way. My conclusion that he was not paying sufficient attention is buttressed by the fact that the vehicle he evidently failed to notice was a prominently marked police car displaying flashing lights. It is clear from the evidence that Mr. Sigouin knew that this was a police car because he testified that he made that observation a short time earlier and that he took measures to situate himself so that he was travelling behind that car.

[44]         As for the plaintiff, he initiated a turn, essentially a U-turn, from the number 2 lane. He satisfied himself that could be done safely with respect to the oncoming traffic. However, he appears not to have appreciated that his maneuver could not be safely executed because there was another vehicle following fairly close behind him.

[45]         Further, he initiated his maneuver not from the left-turn bay, but rather from the number 2 lane, a position which made it less apparent that he was going to turn left.

[46]         I accept that the plaintiff was displaying his emergency lights and it would be apparent to any other motorist that he was engaged in some sort of official emergent duties on the roadway. As I indicated earlier, other drivers are expected to yield to such vehicles.

[47]         However, it is abundantly clear from the legislation that displaying emergency equipment, whether lights or lights and siren, does not afford a shield of invincibility or absolute right. Even when an emergency vehicle has that equipment fully deployed, there is an overriding obligation on the operator of the emergency vehicle to ensure that any driving activity be conducted in a safe fashion vis-à-vis other persons on the roadway.

[48]         In the present case, that required the plaintiff to be sure that his U-turn could be executed in safety. He ought to have been aware of the fact that the defendant’s vehicle was following him, fairly close behind; he ought to have checked behind him.

[49]         It is evident that he did not do so.

[50]         In the circumstances, I find that both of the drivers, the plaintiff and the defendant Mr. Sigouin, were negligent in this collision.

[51]         As for allocation of fault, I find each to be similarly responsible, and I apportion liability equally, that is, 50 percent for each of them.


Stationary Vehicle Partly At Fault for Rear End Crash For Failing to Engage Hazard Lights

July 30th, 2013

Last week the BC Court of Appeal addressed fault for a crash between an impaired driver and a stationary vehicle.  In last week’s case (Hansen v. Sulyma)  the stationary vehicle had run out of gas and pulled off the roadway.   Shortly thereafter another motorist, who had been drinking in excess at a nearby pub, lost control and drove into the stationary vehicle.  While the Court found the impaired driver mostly at fault the driver of the stationary vehicle was also found party to blame.  In reaching this conclusion the BC Court of Appeal provided the following reasons:

[5]             When the Honda was a couple of kilometres away from the terminal, its engine “spluttered” and then stopped.  Mr. Sulyma steered it off the paved portion of the road and onto the shoulder.  He testified that they were stopped on a straight stretch.  He telephoned one of his sisters who lived on the Island and she agreed to bring gas to where the Honda was stranded.  Ms. Hansen phoned home to tell her son that she and Mr. Sulyma would not be back to Powell River until the next day.

[6]             While they were stopped, Ms. Hansen testified that she asked Mr. Sulyma to put on the car’s “flashers” or hazard lights, but he told her that was “silly”.  The lights were left off.  After a few minutes, Mr. Sulyma tried the ignition again and the car started.  He pulled out onto the road and they were able to drive a short distance, but the engine then spluttered and died again.  The trial judge accepted the testimony of both Mr. Sulyma and Ms. Hansen that he steered the vehicle onto the shoulder such that it was parked “entirely on the shoulder of the road, and no part of the vehicle was located on the paved portion of the roadway.”  (Para. 31.)  Although parts of Mr. Leprieur’s statements to the police were to the contrary, other portions of his statements led the trial judge to infer that he had had no memory of where the Honda had been parked.  The trial judge found that the car was “at what counsel have referred to as the ‘apex’ or middle point of a left-turning (for northbound traffic) curve in the highway.”  (Para. 35.)..

[17]         With respect to Mr. Sulyma, the trial judge was satisfied he had failed to meet the applicable standard of care by failing to activate the hazard lights on Ms. Hansen’s vehicle or otherwise illuminating lights that would have made the Honda more easily noticeable to drivers.  As for causation, the Court found this failure “caused or contributed to the collision” and that had the lights been on, Mr. Leprieur would likely have been alerted to the presence of the Honda earlier than he was.  The trial Judge continued:

… Even if Mr. Leprieur’s ability to react was slowed by the excessive amount of alcohol he had consumed and he was being inattentive, flashing lights would probably have caught his attention before the vehicle itself became visible.  An earlier warning of the presence of the Hansen vehicle would, I conclude, have allowed Mr. Leprieur time to stop accelerating or possibly even slow his vehicle, and thereby reduce the force of the impact and the severity of Ms. Hansen’s injuries.  [At para. 78; emphasis added.]

 …

[30]         Moving on to the question of standard of care, Ms. Wright contends that the standard imposed by the trial judge on Mr. Sulyma was “too high in law”.  She emphasizes that the Hansen car was parked off the paved portion of the road.  Can it be correct, she asks, to require a person in Mr. Sulyma’s position to have activated the hazard lights in order to avoid the risk posed by a driver who is drunk, speeding, and accelerating on a trajectory off onto the shoulder?  Ms. Wright observes that this is the first case of which she is aware in which the driver of a vehicle that is parked completely off the road has been held to be negligent for failing to put on his or her hazard lights.

[31]         Mr. Cowper responds ? correctly in my view ? that Ms. Wright’s objections are to the trial judge’s findings of fact rather than to any legal principle she applied.  The question in every case is whether the person has taken reasonable care in all the circumstances.  There is no rule of law to the effect that any driver who parks his car off the road may rest assured that he or she need not activate the vehicle’s hazard lights.  It all depends on the circumstances.  In this case, although the Honda was off the road, it was a dark and misty (if not foggy) night, the road was not illuminated, the car was in the apex of a curve, and Mr. Sulyma and Ms. Hansen were sitting in the vehicle.  As the Court stated in Thornhill v. Martineau (1987) 39 C.C.L.T 293 (B.C.S.C.), even though a vehicle is legally parked, it may create a danger which ought to be foreseen by its driver.

[32]         The trial judge in the case at bar implicitly concluded that it was reasonably foreseeable that a driver coming around the curve would swing wide ? a conclusion of fact that in my view has not been shown to be clearly wrong.  (It was not necessary in this regard to show that Mr. Sulyma ought to have foreseen that an intoxicated driver would speed around the curve.)  I note that this case is substantially different from that inCawson v. Quandt 2001 BCCA 210, where this court reversed a trial judge’s finding that a driver who had encountered deer on the road and, while remaining in the lane of traffic, had stopped his truck to let them cross, had been negligent in failing to turn on his hazard lights.  The trial judge had imposed 15% liability on the defendant for this reason, but the Court of Appeal allowed his appeal on the basis that the trial judge had imposed “an unreasonable standard imposing almost a warranty upon the defendant.”  (Para. 4.)  For purposes of the case at bar, it is important to note that the defendant in Cawson had his headlights and running lights on at all times (see para. 49 of the trial judge’s reasons; [1999] B.C.J. No. 1341).

[33]         In my opinion, this ground of appeal must fail.


Full Rule 15 Costs Apply Where”Significant Preparation For Trial” Undertaken – TAF is Recoverable Disbrursement

July 29th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry addressing two important topics; the assessment of costs for fast track actions when they settle before trial and the recoverability of Trust Administration Fees as a disbursement.

In last week’s case (Christen v. McKenzie) the Plaintiff settled his ICBC claim after litigation was well underway for specified damages plus “costs payable“.  The parties couldn’t agree on these with the Plaintiff seeking full Rule 15 costs and ICBC arguing that a lesser amount should be paid because “a number of pre-trial steps involving a substantial amount of work were still required to be performed as the case settled seven -and-a-half months prior to the commencement of trial“.  Madam Justice Arnold-Bailey awarded the full cap noting that while the trial was a ways off significant trial preparation steps were undertaken and this was sufficient to trigger the Rule 15 cap. The Court provided the following reasons:

[35]         To my mind significant preparation for trial ought to be sufficient to entitle the successful party to costs for pre-trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15). Pre-trial preparation may take various forms given the demands of the particular action. Whether the parties engage in extensive negotiations or mediation and thus achieve a settlement months or days before trial, the preparation by counsel may easily approach that required to actually conduct the trial. The focus ought to be on the amount of useful preparatory work done and not where in the pre-trial timeline the resolution was reached. Indeed, the focus of Rule 15-1 and the Civil Rules generally is to encourage early and fulsome preparation to resolve cases earlier as opposed to later if possible; and also to limit the scope of the proposed trial to what is truly at issue, thus reducing the time and costs associated with resolving the dispute.

[36]         In the present case it is clear that the matter was substantially prepared to the level necessary to achieve a significant settlement prior to trial. While there may be fast track cases where a review of the costs amount claimed for preparation is warranted, this is not one. However one dissects and analyzes what was done or not done to prepare this case for trial, a considerable amount of preparation was performed by plaintiff’s counsel to achieve the sizable settlement. Extensive and protracted negotiations, such as occurred here, ought not to be regarded as requiring significantly less preparation than preparing a case for mediation or trial. Indeed, such negotiations are to be encouraged as the most cost‑effective way of dealing with cases that would otherwise proceed to trial. The efficacy of conducting a fast track action ought not to be undermined by a costs analysis that bogs down in the picayune.

The Court also noted that a Trust Administration fee is a fair disbursement a successful litigant can claim. Madam Justice Arnold-Bailey provided the following comments addressing this:

37]         I note that the plaintiff’s claim for the trust administration fee of $10 plus $1.20 in taxes is not now disputed by the defendant McKenzie and the third party. The following authorities support it being claimed:Parrotta v. Bodnar, 2006 BCSC 787 at para. 25; Polubinski v. Twardowski, 2007 BCSC 843; and McCreight v. Currie, 2008 BCSC 1751. Therefore the plaintiff’s claim for $11.20 in relation to the trust administration fee (including tax) is successful.


What TJ Grant Can Teach Us About Mild Traumatic Brain Injury

July 26th, 2013

Last year I discussed why Sidney Crosby’s concussion is the best thing that happened for mild trauatic brain injury victims.  Last week Canadian Mixed Martial Arts fighter TJ Grant has provided us with an equally teachable moment.  In short he has demonstrated that concussions are serious injuries and need to be treated with respect.

TJ Grant was scheduled to fight for the UFC’s lightweight title.  An opportunity that will take him from relative obscurity into the public spotlight.  This is one of the greatest opportunities that  a professional combat sports athlete can have.   To the surprise of many he stepped down from this opportunity .  This, despite not being guaranteed another shot at the title by UFC brass.  The reason, a concussive injury sustained in practice with lingering post concussive symptoms.

TJ Grant provided a lengthy interview to MMA reporter Ariel Helwani and this is worth listening to in full to help gain some appreciation to the ‘invisible’ aspect of traumatic brain injury, the invasive symptoms TBI can cause and the minor exertions that can create significant set backs in recovery.

As discussed at the Canadian MMA Law Blog , it is now well understood that combat athletes often sustain some of the worst trauma through training, not only by being exposed to possible concussions but through the accumulation of multiple sub concussive blows.  TJ Grant should be commended not only for his personal decision in putting proper recovery first, but for being an example to all combat sport participants that brain health should not be sacrificed, even in the face of possible fame and fortune.


BC Court of Appeal Finds Pub 20% At Fault for Overserving Patron Who Caused a Vehicle Collision

July 25th, 2013

Adding this site’s archived cases addressing commercial host liability, reasons for judgement were released this week by the BC Court of Appeal addressing the blameworthiness of a pub who overserved a patron who then drove drunk and caused a catastrophic collision.

In this week’s case (Hansen v. Sulyma) the Plaintiff was a passenger in a vehicle that ran out of gas and was parked off the side of the road.  At the same time the Defendant, who had been drinking excessively at a nearby pub, “approached from behind, swung wide and hit their car.”  The crash had catastrophic results rendering the Plaintiff quadriplegic.

The motorist was found largely responsible for the crash but the BC Court of Appeal also allocated 20% of the blame to the pub.  In addressing their blameworthiness for over serving a patron the Court provided the following reasons:

[1]             …Mr. Leprieur had spent the evening drinking at a nearby pub and was highly intoxicated.  Employees at the pub had not made any effort to cut off his liquor or to see that he did not get into a motor-vehicle when he left the pub…

[10]         The vehicle that struck the Hansen car was a Ford Explorer being driven by Mr. Leprieur.  He had taken the ferry to Texada Island on the afternoon of November 29 to “hang out” and play some pool at the pub.  After the ferry docked at 4:00 p.m., he went to the pub, arriving between 4:30 and 5:00, and stayed until about 9:45.  There, he ran up a tab in excess of $100 (including some drinks purchased for others).  The trial judge found that he had likely consumed at least six rye whiskeys mixed with water, each consisting of not less than two ounces of alcohol.  The drinks were first served by Ms. Ricki James, the sole bartender on duty when Mr. Leprieur arrived.  She went off duty at 7:00 p.m., when the defendant Ms. Morris took over, again as the sole bartender and server.  Both are employed by the defendant numbered company of which the defendant Mr. de Vita is president and an employee.  He was not present on November 29.

[11]         When Ms. James went off duty, she did not tell Ms. Morris how long Mr. Leprieur had been drinking and Ms. Morris did not ask.  She did note there were three or four double ryes on Mr. Leprieur’s tab.  Ms. James observed that Mr. Leprieur was “fine” when she went off shift, but also said he was “catching a little buzz on”.  Ms. Morris served Mr. Leprieur three more ryes, throwing out the remnants of the third after he left the pub at about 9:45 p.m.  The trial judge continued:

The pub was busy and Ms. Morris did not pay much attention to Mr. Leprieur, but she did not observe him showing signs of being “an extremely drunk person, such as falling down or slurring his words”.  However, a patron in the pub offered to pay for a room at the Texada Island Inn for Mr. Leprieur, from which I infer that others were able to observe signs of impairment.

Mr. Leprieur got into his Ford Explorer and headed north on Blubber Bay Road intending to catch the last ferry.  When interviewed by Constable Rogers, he seemed vague about the departure time for that ferry, but I am satisfied that Mr. Leprieur probably knew that he had left himself very little time to get to the ferry terminal, and that he was likely driving in excess of the posted speed limit.

Ms. Hansen’s testimony about the sounds made by Mr. Leprieur’s vehicle as it approached and the extent of the damage to the two vehicles indicates that Mr. Leprieur’s vehicle was travelling at a high rate of speed when the impact occurred.  The right front of by Mr. Leprieur’s Ford Explorer struck the rear left side of the Accord.  The damage to the front of the Explorer indicates more than half of the front of that vehicle came into contact with the Accord, and although the damage to the rear of the Accord is worse on the left side than the right, the entire back of that vehicle is destroyed. [At paras. 51-3.]

[12]         The RCMP officer who attended the accident recorded that Mr. Leprieur had glassy eyes, was unsteady and smelled of alcohol.  Mr. Leprieur provided a breath sample at 1:26 a.m. which indicated a blood alcohol level of .12.  According to the blood alcohol consultant that level would have been between .147 and .167 at the time of the collision.

[36]         The law is clear, of course, that this court may not interfere with a trial judge’s apportionment of liability under the Negligence Act, R.S.B.C. 1996, c. 333, unless there are “very strong and cogent reasons” for doing so: see Moses v. Kim 2009 BCCA 82 at para. 33.  Even given this stringent standard, however, I am persuaded that the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations.  We were referred to various cases involving host liability to injured third parties, including Menow v. Honsberger [1974] S.C.R. 239 (S.C.C.) and Laface v. McWilliams 2005 BCSC 291. In Laface, Kirkpatrick J. (as she then was) in turn quoted at para. 187 a passage from a judgment of Mackenzie J. in Lum (Guardian ad litem of) v. McLintock (1997) 45 B.C.L.R. (3d) 303 (B.C.S.C.), where she stated:

In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage … [At para. 27.]

In all the cases of commercial host liability to which Ms. Wright referred us, liability of between 78% and 28.5% was apportioned to defendants in the position of the pub defendants in this instance.

[37]         Notably, counsel for Mr. Sulyma made no submission at trial as to what portion of blameworthiness should be allocated to these defendants.  The plaintiff submitted that the figure should be 5% and the trial judge simply adopted that submission, apparently without considering the precedents in this province that augur in favour of a considerably higher apportionment.  Moreover, the trial judge’s suggestion that she would have allocated 75% of the liability to Mr. Leprieur if only two parties had been involved, and her effectively “crediting” him with the 5% seems illogical, with all due respect.   The proper course was for the trial judge to consider the relative fault of all three parties (assuming, as counsel agreed, that the pub defendants could be treated as one for the purposes of this determination) and to determine the relative blameworthiness of each in comparison to the others.

[38]         I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.


Aggravated Assault Causing Orbital Fracture Leads to $50,000 Non-Pecuniary Assessment

July 24th, 2013

In an expensive lesson that problems should not be solved with violence, reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, assessing damages for a facial fracture caused by an assault.

In this week’s case (Plishka-Humphreys v. Bolen) the Plaintiff was walking with friends by a highway when “unbeknownst to him his friend Arnie van der Holt took a slingshot and ball bearing and shot it at a vehicle which was owned and driven by the defendant Bolen.“.  The Defendant chased the Plaintiff and his friend into the woods and “hit him in the face with considerable force. He fell down. He repeatedly was struck in the head and face. He was in and out of consciousness and was in shock.”

The Plaintiff suffered an orbital fracture and ultimately required surgery.  He was left with permanent issues including occasional double vision. In addition to being criminally convicted of aggravated assault, the Defendant was found civilly liable and ordered to pay damages.  In assessing non-pecuniary loss at $50,000 Mr. Justice Cole provided the following reasons:

[20]         I am satisfied that the plaintiff received permanent injury to his eye because of his double vision. He is also at risk of developing glycoma and he suffers from anxiety and thoughts of suicide. He is now more vulnerable to further exacerbation of his post-traumatic stress disorder. He has lost a tooth in what was a traumatic violent assault.

[21]         The range of damages, according to the plaintiff, is (figure is adjusted for inflation) between $24,000 in Springett v. Shanklin, 2001 BCSC 853 and $53,700 in Minet v. Kossler, 2007 YKSC 30.

[22]         Considering and weighing all the evidence, the trauma that the plaintiff experienced, the permanent damage to his eye which causes him to suffer on occasion from double vision and is suffering from Post-Traumatic Stress Disorder (“PTSD”) and is at an increased risk of anxiety and depresic disorder, I am satisfied that an appropriate award including aggravated damages is the sum of $50,000.


Driver Fully At Fault For Striking Pedestrian Standing on Street Side of her Vehicle

July 23rd, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorist lost control in winter driving conditions.

In this week’s case (Lee v. Phan) the Plaintiff was struck by the Defendant’s vehicle as she was standing on the street side of her own vehicle.  The Plaintiff was retrieving groceries from her car and had to walk around the street side of her vehicle as there was a snow bank preventing her from walking to the sidewalk past the rear of her vehicle.  At the same time the Defendant was driving and was concerned the Plaintiff was going to jaywalk in front of his vehicle.   He hit his brakes and ended up steering into the plaintiff.  The Court found the Plaintiff was not about to jaywalk and the Defendant’s actions were negligent. In assessing fault fully with the Defendant Mr. Justice Blok provided the following reasons:

[50]         I find that Ms. Lee did not attempt to jaywalk across Renfrew Street, nor did she intend to do so.  There was no evidence to support this other than Mr. Phan’s impression that this is what “the shadow” seemed to be about to do.  I conclude that Mr. Phan’s impression was an erroneous one…

[56]         Both parties cited a number of cases involving collisions with pedestrians at crosswalks or collisions where wintery conditions were a significant factor.  In view of my finding that Ms. Lee made no attempt to cross Renfrew Street I do not find the crosswalk or jaywalking cases to be particularly helpful.  The winter driving cases establish little more than the general proposition that drivers should adjust their driving and use caution appropriate to the conditions…

[64]         Mr. Phan testified that he turned his vehicle into the snowbank because he felt this was his only option given his conclusion that Ms. Lee was about to jaywalk in front of him.  This, I have found, was an erroneous conclusion.  Had he continued straight ahead there would have been no collision.  Mr. Phan also seems to have been under the impression that one should never apply the brakes of a vehicle in icy conditions.  This is obviously wrong, as the appropriate response is to apply cyclical braking, as confirmed by the plaintiff’s engineer, Mr. Rempel.  For all of these reasons I conclude that Mr. Phan was negligent.

[65]         As for Ms. Lee, I am unable to accept the defendant’s suggestion that she ought to be found to be contributorily negligent.  She was not in a place that posed a hazard or obstruction to traffic, she was wearing a white coat and she was facing in the correct direction towards oncoming traffic.  The defendant has not established that Ms. Lee had any realistic opportunity to get out of the way.  I see no negligence on her part.

 


$85,000 Non-Pecuniary Assessment for Chronic Thoracic Outlet Sydrome Coupled With Mild Brain Injury

July 22nd, 2013

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an injury caused in a vehicle collision.

In last week’s case (Danielson v. Johnson) the Plaintiff was involved in a 2008 collision.  Liability was admitted.  The Plaintiff, who worked installing ceilings, suffered a mild traumatic brain injury and thoracic outlet syndrome in the crash.  The Defendant took a serious run at the plaintiff’s credibility pointing out a history of cocaine use, getting paid under the table, and even lying at his examination for discovery.  Despite this the Court found the plaintiff ‘credible and reliable’.  The Court noted these injuries were caused by the collision and would likely require vocational retraining.  In assessing non-pecuniary damages at $85,000 Mr. Justice Silverman provided the following reasons:

[139]     With respect to both TOS and the MTBI, I reject the inference that prior injuries may have caused his current problems.  To the contrary, the evidence is that it is common for the long-term consequences of prior injuries to sometimes be sitting dormant, and when a newer injury emerges, a MTBI or TOS may result.  I am satisfied that has occurred here…

[146]     I am satisfied of the following: that the plaintiff did suffer a brain injury in the MVA, it was a mild brain injury, he suffers from accompanying emotional difficulties that cause additional impairment, and the consequences of the foregoing are likely to be ongoing…

[147]     The weight of the evidence supports the finding that the plaintiff does suffer from TOS as a result of the MVA and, on a balance of probabilities, I find this to be so.  I note that Dr. Fry devotes much of his medical practice to the management and treatment of TOS, both conservatively and with surgery, and that Dr. Salvian has a special interest in the diagnosis and treatment of TOS.

[148]     More than a decade ago, the plaintiff had a fracture to his neck which eventually healed completely, and he had no problems as a result of it in the five years prior to the MVA.  The research has shown that a majority of people who suffer from TOS have had a prior neck injury, perhaps even years before, which had long healed, but that set them up to be vulnerable to any further injury.  I am satisfied that this is what happened to the plaintiff.

[149]     When the plaintiff raises his right arm to the side or above his head, or in front of him (while driving) as well as into a position where his hands are at the height of his head or slightly higher, TOS symptoms are provoked. Unfortunately, he is required to do these sorts of movements at his work.

[150]     I am satisfied that the plaintiff suffers from TOS as a result of the MVA.  He has been able to function with his pre-MVA activities, including work and recreational activities, although less efficiently and less comfortably than before the MVA.  I am satisfied that the evidence indicates this will not improve; in fact, it will worsen.  Hence, the weight of the medical opinion that the plaintiff must re-train…

[167]     I agree that the plaintiff demonstrates remarkable grit in continuing to work and to be involved in extreme sporting activities, to some extent contrary to the advice he has received from various doctors and to the surprise of those doctors.  Having said that, I am satisfied that the plaintiff does so with much less ease and pleasure than he did prior to the MVA.  He has suffered a loss in that regard, and will continue to do so.

[168]     In view of all the foregoing, I award non-pecuniary damages in the amount of $85,000.


Plaintiff’s “Strong and Stubborn” Evidence Undermines Traumatic Brain Injury Claim

July 19th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing Plaintiff reliability in the context of an alleged traumatic brain injury claim.

In this week’s case (Harris v. Xu) the Plaintiff sustained various injured in a 2008 collision.  The Defendant admitted fault but disputed the nature and severity of the Plaintiff’s claimed injuries.  One of the injuries the Plaintiff allegedly sustained was a closed head injury.  Madam Justice Adair rejected this aspect of the Plaintiff’s claim noting some difficulties with the Plaintiff’s evidence regarding her injuries.  In dismissing the brain injury claim the Court provided the following reasons:

[83]         I do not doubt Ms. Harris’s honesty.  However, in giving her evidence, Ms. Harris demonstrated a strong and stubborn tendency to attribute almost every problem and every difficulty in her life to the accident.  In my view, this dictated caution before accepting Ms. Harris’s version of events, because her version is coloured by Ms. Harris’s firm belief that the accident – and the accident alone – is responsible for her current circumstances.  I have concluded that Ms. Harris is deeply frustrated by those circumstances and, in her own mind, is trying to impose some logic on past events.  This approach to her life is consistent with how her long-time friend Ms. Baird described Ms. Harris’s personality.  But what I needed from Ms. Harris were the facts, not Ms. Harris’s reconstruction of, and her conclusions about, what she believes happened, based on what, in hindsight, she now thinks makes sense.

[84]         The question of whether Ms. Harris suffered a closed head injury in the accident illustrates the problem.  At trial, Ms. Harris insisted that she was “knocked out cold.”  She gave this evidence, using those words, several times.  She communicated this to Dr. McCloskey when she saw him for the first time on April 17, 2008.  She later reported to Dr. McCloskey that she had been unconscious for minutes.  This was then further particularized as five minutes.  She gave a similar history to Dr. Coghlan, and it is the basis for his opinion concerning a closed head injury.  

[85]         However, there is no independent evidence to corroborate what Ms. Harris firmly believes.  If Ms. Harris was in fact “knocked out cold,” I do not know how Ms. Harris could possibly know that it was for five minutes.  Her memory (based on what she told Dr. McCloskey) seems to become more exaggerated with the passage of time.

[86]         At trial, Ms. Harris very strongly and firmly rejected what appeared in the Royal Columbian Hospital emergency clinical record, that she had reported no loss of consciousness.  However, in my view, her detailed evidence concerning events at the accident scene and of her activities after leaving the hospital (collecting luggage, renting a car, and so on) on the day of the accident, are inconsistent with her having sustained any significant head injury or concussion in the accident.  Ms. Harris’s activities are consistent with her accepting what she says she was told at the hospital – that she was “good to go” – and (apart from her painful ribs) agreeing with it.  Ms. Harris did not tell Dr. McCloskey about what she did after the accident, or that she drove with her mother back to Kelowna the following day.  As a result, he did not have all of the facts when he made his assessment concerning this particular injury.  Dr. Coghlan’s opinion concerning a closed head injury is based on Ms. Harris’s history of “significant post-traumatic amnesia,” but he did not have all of the facts either.  I cannot place much weight on either opinion on this point.  There might be an explanation for why Ms. Harris was able to carry on the way she did after the accident and the following day, despite sustaining a closed head injury or concussion.  But, because neither Dr. McCloskey nor Dr. Coghlan had all the facts, neither of them was in a position to provide one to me…

[100]     I am not persuaded that Ms. Harris suffered a mild closed head injury in the accident.  In my view, the evidence in this respect is too equivocal for me to reach a conclusion that Ms. Harris has proved, on a balance of probabilities, she suffered such an injury in the accident.  Even if she did, I accept Dr. Coghlan’s opinion that whatever happened will not result in any long-term problems. 


$40,000 Non-Pecuniary Assessment for Lingering “Intermittent” Soft Tissue Injuries

July 18th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering intermittent soft tissue injuries.

In last week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision.  Fault was not at issue.   Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility”  Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[75]         I conclude and find as a fact the following with respect to Mr. Wilson’s injuries:

a)    Mr. Wilson suffered soft tissue injuries to his neck, shoulder and back areas as a result of the motor vehicle accident.

b)    Mr. Wilson’s low back injuries resolved very quickly after the accident.

c)     Mr. Wilson suffered from fairly constant neck and shoulder pain and headaches for the first six months, but these symptoms gradually became more intermittent and less severe until his return to work in early 2010.

d)    By May 2010, Mr. Wilson’s neck and shoulder pain and headaches were continuing on an intermittent basis, but were continuing to improve.

e)    At the time of the trial, Mr. Wilson continued to experience pain in his neck and shoulder area and was experiencing headaches, all on a very intermittent basis.

[112]     I award the sum of $40,000 for non-pecuniary damages.