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

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Archive for January, 2014

$130,000 Non-Pecuniary Assessment For Chronic Pain With Related Heart Palpitations

January 31st, 2014

It what is a fairly unusual symptom following motor vehicle related injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with associated heart palpitations.  In this week’s case (Morena v. Dhillon) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a variety of injuries which remained symptomatic at the time of trial and were expected to linger into the future, the most unusual of which were heart palpitations.  In assessing non-pecuniary damages at $130,000 Madam Justice Arnold-Bailey provided the following reasons:

[117]     The evidence establishes that she was injured in the accident and as a result developed of the following injuries and conditions as listed by to Dr. Koo:

1.         Soft tissue injuries to the neck, shoulders, arms, lower back and legs with chronic residual sequelae of:

a)         Chronic whiplash injury with mechanical neck pain, myofascial origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus muscles.

b)         Mechanical low back pain.

2.         Chronic sleep disruption.

3.         Posttraumatic stress disorder.

4.         Severe depression.

5.         Heart palpitations.

[130]     In the present case, prior to the accident, the plaintiff was a vital, energetic 43-year-old wife and mother of two. The extent of her injuries and the ensuing conditions is clearly set out above. She is likely to continue to suffer from pain, depression, PTSD, sleep disruption and potentially heart palpitations in to the future. Her depression is severe and seems to be entrenched. Her pain is severe at times and she requires constant pain medication. Her emotional suffering is great due to her great sadness and regret that she is not able to make the contributions to her family life that she did prior to the accident. Her relationships with family and friends have been negatively affected although her family remains intact. The best evidence is that she is fully disabled from work except for the one hour a day as a lunch supervisor she currently performs during the school year. She remains partially disabled from housework and other physical activities. Her enjoyment of all aspects of her life is significantly reduced. She is prevented by the injuries and their aftermath from living what otherwise was likely to have been a very happy, productive and fulfilling life. She has lost much.

[131]     Considering the range of awards in the authorities provided on behalf of the plaintiff, I find the decisions of Marois and Morlan to be of the most assistance. I award non-pecuniary damages in this case in the amount of $130,000.

No Legal Duty of Care Between “Ski Buddies”

January 29th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a novel claim; whether ‘ski buddies’ owe each other a legal duty of care.

This week’s case (Kennedy v. Coe) involved a heli-skiing expedition.  The Plaintiff’s husband and the Defendant never met before.  The skiers were to ski in a buddy system for certain runs and the two were paired up for this purpose.

During a run which did not require buddy supervision the Plaintiff’s husband had a fatal accident.  The Defendant did not notice at the time but when he realized the Plaintiff’s husband was absent he alerted the group and a search was undertaken.  The Plaintiff sued for damages arguing that had the Defendant paid better attention the search could have been undertaken sooner and possibly saved her husband’s life.

Madam Justice Fischer dismissed the claim finding the Defendant acted reasonably in the circumstances and even if he did not there was no legal duty of care in these circumstances.  In reaching this conclusions the Court provided the following reasons:

[99]         There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence I have reviewed. For the reasons I have outlined, I conclude that none of the three factors in Childs support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish aprima facie duty of care. A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The “more” may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances, which would be subject to an analysis of the contrary policy considerations at stage two of the Annstest…

[121]     The plaintiff’s claim is dismissed. It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe.


BC Court of Appeal Upholds “low” Non-Pecuniary Damage Award in Brain Injury Claim

January 28th, 2014

In what may be the low water mark in upheld assessed damages for a skull fracture and brain injury, the BC Court of Appeal upheld a jury’s damage award of $35,000.

In today’s case (Paskall v. Scheithauer) the Plaintiff was involved in a pedestrian/vehicle collision.  She sustained serious injuries including a left temporal skull fracture, a basal skull fracture and a traumatic brain injury.   The only expert evidence the jury heard from were independent medical examiners hired by the Plaintiff.  The Defendant conducted a defense medical examination but did not produce a report.  The Plaintiff did not call any of her treating physicians.  The Defendant argued that while the injuries were severe they recovered well, a conclusion the jury may have accepted.

In upholding the “low” assessed non-pecuniary damages the  BC Court of Appeal provided the following reasons:

[42]         The injuries sustained by the appellant were significant, but there is no schedule for an award of non-pecuniary damages based on the nature of the injuries sustained.  The function of damages in tort is to put the claimant into the position she would have been in had the tort not occurred.  Compensation for the trauma and pain of her injuries is required, but further compensation requires proof of ongoing adverse effects.  It is apparent that the jury, in its award of non-pecuniary damages, did not accept that the appellant has serious, ongoing adverse effects.

[43]         Although the award for non-pecuniary damages appears to be low, in my view, it was open to the jury to make it.  It reflects the jury’s consideration of the fact the appellant was injured seriously and its assessment that her injuries did not have a long-term serious effect.  I see no basis on which this Court could interfere with it.

In concurring reasons Madam Justice Saunders commented as follows:

[97]         My second comment is in respect to the award of non-pecuniary damages. Damages are a question of fact, as to which this court owes deference to the fact finder. The classic statement of our role as an appellate court found in Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.), has equal force today:

… Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell, [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld., [1942] A.C. 601). The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld., at 616).

                                                                                          [Emphasis added.]

[98]         While the award is very much at the low end of those amounts awarded for traumatic brain injury in many other cases, we cannot say, on the evidence the jury could have accepted, that the award is a “wholly erroneous estimate of her loss of amenities and enjoyment of life”.

[99]         Accordingly, I, too, would dispose of the appeal and cross appeal in the manner described by Mr. Justice Chiasson.

BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

January 27th, 2014

The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.

In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm.  While on disability leave she was involved in a collision.  She sued for damages alleging the collision related injuries prevented her from returning to work.

The Plaintiff was represented by a lawyer from the firm that she worked at.  In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“.   The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis.  Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial.  The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:

[21]         The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.

[22]         After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.

[23]          In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows:

…The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.

[24]         There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.

[25]         I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.

[26]         The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.

[27]         I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.

“Mild” Concussion Leads to $5.9 Million Judgement

January 20th, 2014

I can put it no better myself than the beginning of the judgement which reads “Occasionally a seemingly innocuous event can have tragic consequences“.  This passage is taken from reasons for judgement released today by the BC Supreme Court, Vancouver Registry, dealing with such consequences after a seemingly minor collision.

In today’s case (Wallman v. John Doe) the Plaintiff was involved in a rear end collision in 2006.    It was by all accounts a modest collision however it caused a concussive injury.   The Plaintiff went on to suffer from profound post concussive symptoms.  He was a doctor and these symptoms disabled him from his own profession.  Due to this lost income earning ability the assessed damages were high.  In assessing non-pecuniary damages at $200,000 Mr. Justice Weatherill provided the following reasons:

[465]     Dr. Smith opined that post-concussion syndrome is not a valid medical diagnosis.  Drs. Teal and Prout opined that it is not only a valid, but also a generally recognized diagnosis.  I accept the opinions of Drs. Teal and Prout and reject those of Dr. Smith.

[466]     In my view the plaintiff has established beyond the balance of probabilities that the dramatic and sudden onset of symptoms of headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression and anxiety and problems with vision, concentration, multi-tasking and speech and communication, are the result of him having suffered a MTBI (concussion) caused by the Accident.

[467]     Moreover, I find that the plaintiff continues to suffer from post-concussion syndrome as a direct result of his Accident-related concussion…

[470]     Prior to the Accident, the plaintiff was a confident, decisive, energetic individual with an excellent memory and a penchant for detail.  He was able to identify a problem facing him, define the options available for resolving the problem and choose from among them.  He loved challenge and loathed routine. He felt he could accomplish anything he wanted to.   He was the hardest-working emergency room physician at WHCC.  He loved and was passionate about his work.  He thrived on the stimulation and the trauma of the emergency room.  He was happy with his life and enjoyed helping others.

[471]     At the time of the Accident, the plaintiff was at the height of his medical career.  He had a very good reputation as an emergency room physician and was well respected in the Whistler community.  His reputation was important to him and he was proud of his accomplishments.  He had no plans to retire.

[472]     There is no question that the plaintiff’s life has changed profoundly as a result of the Accident.  His ability to function in everyday life has been significantly impaired.  He has considerable cognitive challenges that will likely affect him for the rest of his life.  He has lost his overall confidence.  He struggles to make decisions and initiate activities.  He is inattentive and displays poor judgment.  He has withdrawn socially.  His thresholds for mental and physical activities are limited to approximately 2 hours and 30 minutes, respectively, beyond which he becomes symptomatic.  He is no longer able to practice as an emergency room physician, a job he was passionate about and proud of.  His ability to interact with and enjoy his children has been impaired.  The medical experts are of the opinion that his recovery has likely plateaued.

[473]     As a result of the Accident, the plaintiff’s ability to work in the job he loved has been taken from him.  He has lost his sense of purpose in life.  He no longer feels that he is a contributing and productive member of society. The realization that he will be unable to return to his profession and that his life as it was prior to the Accident is gone has been devastating to him.

[474]     He wanted to engrain in his children the values of hard work and reputation in the community.  It is devastating to him that he cannot show his children that he works hard.

[475]     He has difficulty identifying problems facing him and defining his options.  He cannot seem to understand the problem and make a decision.  He does not trust his own judgment either medically or as it relates to his real estate investments.  He has trouble making day-to-day life decisions.  Although the plaintiff realizes that he must learn to allow others to help him, he has a great deal of difficulty accepting that fate…

[484]     Having considered the principles set out in Stapley, the ordeal that the plaintiff has gone through, the impact the Accident has had on the plaintiff’s life including the loss of a vibrant medical career that was very important to him, as well as  the cases relied upon by counsel, I find that an award of $200,000 for non-pecuniary damages is appropriate.

Criminal Conviction Strips Defendant of Civil Liability Denial

January 17th, 2014

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, confirming that it is an abuse of process to deny liability in a civil lawsuit for damages following a criminal conviction related to the same incident.

In today’s case (McCaffery v. Arguello) the parties were involved in a road rage incidence during which the Defendant “proceeded to intervene in the fight between Mr. McCaffery and Mr. Segundo by repeatedly striking Mr. Mccaffery with the baseball bat, causing him serious but non-life-threatening injuries to his head and wrist.”

The Defendant was criminally convicted of assault with a weapon and assault causing bodily harm.  The Plaintiff sued for damages and the Defendant denied liability.  In summarily finding the Defendant civilly liable Mr. Justice Sewell provided the following reasons:

[33]         Mr. Arguello’s counsel submits that as provocation may affect the quantum of damages It will still be necessary to hear viva voce evidence about the circumstances leading up to the assault at the assessment. That may be so. But the evidence will have no bearing on liability. I am also of the view that evidence restricted to the limited issue of provocation will not materially lengthen or complicate the assessment process.

[34]         I am also satisfied that I should grant judgment on liability notwithstanding the fact that this amounts to a severance of the issues of liability and assessment. Rule 9-7(2) permits a party to apply for judgment on an issue or generally. In my view this is an appropriate case to dispose of liability before assessing damages. Mr. Arguello clearly has no defence on the issue of liability. There is no reason to require him to re-litigate that issue.

[35]         Finally, I conclude that there is no merit in the argument that judgment cannot be granted in the absence of the defendant Mr. Segundo. I was not referred to any authority for the proposition that the plaintiff is not permitted to pursue judgment against one defendant in an assault case. If Mr. Arguello wishes to pursue a claim against Mr. Segundo for contribution, he is at liberty to do so. However I see no reason why that possibility should delay the plaintiff’s claim against him.

[36]         Accordingly I find that the plaintiff is entitled to judgment finding the defendant liable for his injuries, with damages to be assessed.

Examination For Discovery Continuations When Cases Removed From Fast Track

January 16th, 2014

Typically the BC Supreme Court rules allow examinations for discovery to last  up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours.  What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.

In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision.  She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests.  The matter then was removed from the fast track and a further discovery was sought.  The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons:

[20]         The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.

[21]         The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.

[22]         Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.


$55,000 Non-Pecuniary Assessment For Chronic Headaches Secondary To Neck Injury

January 15th, 2014

Adding to this site’s archived caselaw addressing damages for headaches, reasons for judgment were released this week by the BC Supreme Court, Prince George Registry, dealing with such an injury.

In this week’s case (Rutledge v. Jimmie) the Plaintiff was involved in a 2011 collision in Quesnel.  The Defendant was found fully at fault.  The Plaintiff suffered a neck injury which caused secondary headaches which continued at the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $55,000 Mr. Justice Tindale provided the following reasons:

100]     The plaintiff, based on the preponderance of evidence, has clearly established that the motor vehicle accident caused him to have chronic post- traumatic headaches related to a neck injury.

[101]     This injury has caused significant changes to his lifestyle, particularly to his passion for powerlifting. He has also had to modify his lifestyle with regard to recreational activities, activities at home and some of his activities at work. I am mindful that the plaintiff did not miss any employment as a result of this accident; however, I also accept that he is a stoic individual and persevered in his employment…

[103]     Dr. Robinson opined that despite the success of the Botox treatment, the plaintiff’s headaches may continue to linger for many years to come although at a lower frequency and severity than the plaintiff is experiencing now.

[104]     The majority of the cases relied on by the plaintiff have fact patterns which are far more serious than the case at bar. Likewise, the cases relied on by the third party do not appropriately address the significant lifestyle changes and pain suffered by the plaintiff.

[105]     In my view the appropriate award for non-pecuniary damages is $55,000.

Passenger Partly Liable for Collision After Grabbing Steering Wheel

January 13th, 2014

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing fault for a single vehicle collision involving a passenger who grabbed the steering wheel.

In last week’s case (Sikora v. Brown) both the motorist and her passenger were driving home from a nightclub.  Both had been drinking but neither was “seriously intoxicated“.  As they drove through an intersection the steering wheel was shaking and the driver invited the passenger to feel this.  He held on to the steering wheel and shortly thereafter the collision occurred.  In finding both the driver and passenger equally to blame Mr. Justice Verhoeven provided the following reasons:

[37]         In these difficult circumstances, where neither version of events is reliable and where there is essentially no independent corroborative evidence one way or another, I find as follows.  Ms. Sikora had been drinking some alcohol at the nightclub but was not seriously intoxicated.  Mr. Brown had been drinking as well, somewhat more than she had, but was a large man and was also not seriously intoxicated.  They left the nightclub together intending to go to Ms. Sikora’s home. Along the way they discussed going to a restaurant.  Whether they actually agreed to go to the restaurant is immaterial.  Ms. Sikora was driving at about 60 km/h as they drove through the intersection.  She was aware that the intersection caused her vehicle to shake, and that the steering of her vehicle was notably “loose” and prone to shaking.  Either before entering the intersection or in its midst, in the context of telling Mr. Brown about the new car she had ordered that very day, she commented about the condition of the intersection, complained that it should be repaired, and complained about the poor condition of her vehicle’s steering in common with Fords generally.  She did not slow down before entering the intersection.  She invited Mr. Brown to observe the shaking of the steering wheel, and to feel the steering wheel of the car for himself.  He held it for a few seconds then let go.  The combined effects of Mr. Brown’s holding of wheel, the condition of the road and vehicle, and Ms. Sikora’s manner of driving the vehicle caused her to lose control of the vehicle some seconds after Mr. Brown let go of the wheel.  The precise mechanics of this are impossible to sort out. She did not brake at any time.  The vehicle likely swerved left before veering to the right, and then left the roadway to the right side, before eventually coming to rest in the ditch upon impact.

[38]         I find that both parties were negligent and that they both contributed to causing the accident in equal measure.  Ms. Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects.  In somewhat precarious circumstances, she invited Mr. Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle.  She did not slow down when he held the steering wheel for several seconds.  She lost control of the vehicle after he let go of the wheel.

[39]         Mr. Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms. Sikora’s comments about the problems with her vehicle’s steering, that his actions could affect Ms. Sikora’s ability to control the vehicle.  I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise.  I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking.  He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle…

[45]         I find that Ms. Sikora and Mr. Brown are equally at fault for causing the accident.  As a result it is not strictly necessary to apply s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides that where the fault of two or more persons causes damage or loss to one or more of them, liability must be apportioned equally if having regard to all the circumstances of the case it is not possible to establish different degrees of fault.

“Textbook Example of Failure to Mitigate” Leads to Over $100,000 of Stripped Damages

January 10th, 2014

It pays to take reasonable efforts to get better.  Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.

In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future.  The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow.  The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments.  In reaching this conclusion Mr. Justice Kelleher provided the following reasons:

[55]         The facts of this case represent a textbook example of a failure to mitigate.  There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer.  Their recommendations are remarkably similar.  Mr. Maltese has chosen to ignore them…

[59]         I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.

[60]         Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. 

[61]         On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate…

[77]         In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program.  The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer.

[78]         But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages.  I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future.  After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning.  He has not done so.  I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.