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BC Injury Law and ICBC Claims Blog
This Blog is authored by British Columbia personal injury 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 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 the ‘ICBC Ankle Injury Cases’ Category
January 30th, 2013
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a serious ankle injury leading to permanent partial disability.
In this week’s case (Hubbs v. Escueta) the Plaintiff was injured in a¬†motorcycle¬†accident when he was struck by the Defendant. ¬†Although liability was contested the Court found the Defendant’s evidence was “not credible” and he was found fully at fault for the collision.
The Plaintiff suffered a complex bimalleolar ankle fracture which was treated surgically.
(Image via Wikimedia)
The hardware was eventually removed but the Plaintiff’s symptoms continued. ¬†He was expected to have permanent restrictions with his ankle and was exposed to risk of early degenerative changes leading to further¬†deterioration¬† ¬†The Plaintiff worked as an¬†electrician¬†and his ability to do so was significantly¬†compromised¬†by this injury. ¬†In assessing non-pecuniary damages at $130,000 Madam Justice Ross provided the following reasons:
¬†¬†¬†¬†¬†This case highlights the importance of the individual circumstances. The injury suffered by Mr.¬†Hubbs is serious. While the consequences for someone of more sedentary occupation and lifestyle might not have been so significant, for Mr.¬†Hubbs the injury has proven to be life changing. He is a relatively young man who now faces a lifetime of limitation and disability. Mr.¬†Hubbs‚Äô livelihood requires strength, agility and balance, all of which have been impaired by the injury. The injury has impaired his ability to earn his living. He has worked through the pain, but at a terrible cost to his family life. He is no longer able to enjoy the active lifestyle he loved. His mood is depressed and he has little energy for anything except the struggle to put in a day at work. His relations with his wife and children have been damaged. It appears that he has reached a plateau in his recovery and faces a future of increased deterioration and vulnerability to injury.
¬†¬†¬†¬†¬†In my view, the cases cited by plaintiff‚Äôs counsel are more representative of the circumstances in the present case. I award $130,000 for non-pecuniary loss.
June 22nd, 2012
Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, assessing damages for physical and psychological injuries resulting from a motor vehicle collision.
In last week’s case (Verge v. Chan) the Plaintiff was injured in a 2006 head-on collision. ¬†She was 34 at the time and lived a ‘farming lifestyle’ which required significant¬†strenuous¬†labour. ¬†The Plaintiff¬†suffered¬†a fractured ankle and¬†psychological¬†injuries both of which lingered to the¬†time¬†of trial and impeded with her physical lifestyle. ¬†In assessing non-pecuniary damages at $125,000 Mr. Justice Greyell provided the following reasons:
Ms.¬†Verge suffered soft tissue injuries to her neck and back, a fractured right talus, bruising to and pain in her chest, and pain in her left shoulder, both knees, and hip.
 She continues to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder (‚ÄúPTSD‚ÄĚ), depression and chronic pain…
 The injury she sustained in the accident of December 6, 2006, has had a significant effect on her physical and mental health.¬† She is left in virtually constant pain with an unstable ankle such that she can no longer perform the tasks she used to perform on the farm and about the house or enjoy the hobbies and recreational pursuits she used to enjoy pre-accident.¬† She has developed mental health issues, including PTSD and depression, which will require a significant course of treatment before she can return to work.¬† As a result of her injuries, the work opportunities which will be available to her are less than pre-accident.¬† She has lost the farming lifestyle she enjoyed and her family, marital, and social relationships have been impaired…
78] After considering the evidence, the factors enumerated by the Court of Appeal in Stapley, and the authorities cited by counsel, I award non-pecuniary damages in the amount of $125,000.
October 13th, 2011
Reasons for judgement were released last month by the BC Supreme Court, Chilliwack Registry, addressing damages from a 2006 motor vehicle collision.
In last month’s case (Felix v. Hearne) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” ¬†He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. ¬† The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her¬†abilities¬†both vocationally and recreationally. ¬†Global damages of just over $800,000 were assessed including non-pecuniary damages of $200,000. ¬†In arriving at this figure Mr. Justice Grist provided the following reasons:
 In this case, the physical injuries continuing to affect the plaintiff include: the injury to her left shoulder, left wrist and left ankle; as well as persistent pain in her neck and back. The pain in her neck and back limits her ability to sit for any extended period of time and is associated with the onset of headaches.
 The residual effect of the collision, however, is markedly more significant because of the PTSD and depression that she suffers. Combined, there is significant loss in respect of her vocation, family life and social activities…
 Ms. Felix‚Äôs life has markedly changed following the collision. She is now reliant on her daughters to assist in keeping her home. She receives psychological therapy, is treated with anti-depressant medication and has been prescribed Ativan and Valium to allow her to sleep. She has not been able to work and has been forced to live off of disability benefits and funds realized by re-mortgaging her home. The evidence from her daughter and her two long-time friends who gave evidence on her behalf was that her level of activity and previously bright outlook on life had markedly changed. Her daughter was concerned that, at times, she seemed suicidal. She said that she noted some improvement after she attended the pain clinic in the spring of 2010 and that she seemed a little happier and better able to manage her pain, but that she had regressed since and lacked focus and initiative. She said she often appeared to be in pain, had become short tempered and withdrew from contact with family and friends.
 Many of the same comments were made by her friends who commented on the difficulty in getting her to attend social functions, her lack of participation and stamina, and her fragile emotional state.
 For a time, she formed a relationship with an individual she met through a common friend, but they have since separated which she attributed to her depression and inability to join in social activities he wanted to participate in. She relates that she began to abuse alcohol to the point she feared she was alcoholic…
 It is now six years subsequent to the collision and, although there have been some areas of recovery, there would appear to be, at best, only a modest hope for further improvement…
 On balance, I think an appropriate assessment in light of this authority in this case to be $200,000.00 in non-pecuniary damages. The combined effects of residual physical injuries, specifically the neck and back pain and associated headaches, loss of function in her left wrist, and injury to her left shoulder and ankle, along with the pervasive emotional disorder resulting from the effects of her injuries and the trauma of the collision, have been devastating to Ms. Felix‚Äôs personal and vocational life. She has lost much of her ability to be self-reliant and to participate in many of the activities that have been the foundation of her social life. The injuries are now assessed as chronic and I think she will continue to struggle with the depression and emotional upset that has marked the six years subsequent to her injuries.
It is worth noting that none of the Plaintiff’s evidence was tested through cross-examination as the Defendant’s estate did not file an appearance and ICBC, for reasons that were not clear in the judgement, “declined to participate” in the defence of the claim. ¬†Despite this, the case still has value as a precedent for non-pecuniary¬†damage assessments for chronic pain following a motor vehicle collision.
August 17th, 2011
Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.
In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003. ¬†Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash. ¬†The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting. ¬†The driver was found 90% at fault with the Ministry shouldering 10% of the blame.
The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury. ¬† The consequences of these were expected to cause permanent dysfunction. ¬†In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:
 Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji‚Äôs left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.
 Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…
 Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms.¬†Chauncey‚Äôs and Ms. Wyeth‚Äôs description of Ms. Meghji‚Äôs abilities in her math class and as a teaching assistant before the accident, I conclude that Ms.¬†Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.
 In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.
This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle. ¬†In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist. ¬†The neurologist did not tender evidence at trial. ¬†Mr. Justice Johnston used his discretion to draw an adverse inference in these¬†circumstances¬†finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim. ¬†The court provided the following reasons:
 In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.
 However, where, as here, counsel has assumed control of medical management of a plaintiff‚Äôs injuries, the circumstances are not ordinary.
 Dr. Grimwood would ordinarily have been expected to coordinate Ms.¬†Meghji‚Äôs treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms.¬†Meghji‚Äôs counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.
 Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.
 In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.
 Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr.¬†Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.
February 28th, 2011
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issues of fault and value of injuries sustained in a 2005 slip and fall accident in Vancouver, BC.
In today’s case (Druet v. Sandman Hotels, Inns & Suites Ltd.,) the Plaintiff was visiting Vancouver, BC and was staying at a hotel operated by the Defendant company. ¬†As she entered the hotel she slipped on the floor and fractured her ankle. ¬†The injury requires surgical correction.
The Court found that both parties were equally at fault for the incident. ¬†The Defendants were found at fault for having unreasonably slippery tiles in their lobby knowing how often patrons tracked water into the lobby. ¬†The Plaintiff was found partly at fault for failing to take reasonable care for her own safety. ¬†Paragraphs 14-62 are worth reviewing for the Court’s discussion of fault.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Savage made the following findings with respect to the severity of the Plaintiff’s injury:
¬†¬†¬†¬†¬†¬†¬†¬†Druet suffered a bimalleolar ankle fracture.¬† She had open reduction surgery.¬† The break was fixed with metal screws.¬† The metal screws were removed by a further operation.¬† She had ongoing complaints of stiffness and lack of range of motion.¬† She had a lack of dorsiflexion and could not invert or evert her right hindfoot very well.¬† In June¬†2008 she had scar tissue surgically debrided and a gastrocnemius recession was performed.
¬†¬†¬†¬†¬†¬†¬†¬†By 2009 Druet‚Äôs condition was stabilized, but she had stiffness and arthrofibrosis of her right ankle, related to her bimalleolar ankle fracture.¬† She is not considered at high risk for future injuries, provided she stays within reasonable restrictions.
¬†¬†¬†¬†¬†¬†¬†¬†She walks with a slight limp and can no longer run as she once did, but can walk significant distances, which she does with walking partners.¬† She has some concerns about the work she does as a nurse, but is still able to perform the work required to the satisfaction of her current employer…
¬†¬†¬†¬†¬†¬†¬†¬†I have described the injuries above.¬† As a result of those injuries the plaintiff had three surgeries, although two were in succession.¬† She had implantation of a plate, a rod and surgical screws in March¬†2005 which were removed in September¬†2005.¬† Her ankle was debrided in June¬†2008.
¬†¬†¬†¬†¬†¬†¬†¬†Druet missed a total of three months of work as a licenced practical nurse arising from the injuries and surgeries.¬† She walked with crutches for a short time after the Accident while recuperating.¬† She had limited physiotherapy in 2005 but not since.¬† She wears orthotics.
¬†¬†¬†¬†¬†¬†¬†¬†Druet has substantially resumed her previous activities, except running.¬† She now walks two miles a day, five days a week. ¬†She did substantial walking during a vacation to Europe in 2006 and a holiday in New York in 2008.¬† She can walk five kilometres.¬† She participates in 5K walks and completes them 10 to 15 minutes slower than when she ran. ..
In my opinion non-pecuniary damages fall between the two parties‚Äô positions.¬† I award $55,000 under this head.
July 22nd, 2010
(Illustrations provided courtesy of¬†Artery Studios Ltd.)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.
Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) . ¬† The Defendant was operating a pick-up truck. ¬† The Plaintiff was operating a dirt bike. ¬†The vehicles approached each other from opposite directions. ¬†Both motorists gave evidence that the other was on the wrong side of the road as they approached. ¬†Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other. ¬†The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck. ¬† The Defendant was found 90% at fault for the crash.
The Plaintiff suffered serious injuries including a fractured right ankle and right wrist. ¬†Both of these required surgery. ¬†The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries. ¬†Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff. ¬†In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:
¬†¬†¬†¬†¬†The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff‚Äôs injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.
¬†¬†¬†¬†¬†The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.
¬†¬†¬†¬†¬†He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.
¬†¬†¬†¬†¬†I assess non-pecuniary damages in the amount of $135,000.00.
July 13th, 2010
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding a Plaintiff just over $10,000 for injuries and losses sustained in a cross-walk collision.
In today’s case (Furness v. Guest) the Plaintiff pedestrian was struck by the Defendant’s vehicle as he was trying to cross Nicol Street in Nanaimo, BC. ¬†When the Plaintiff stepped off the curb to cross the street the “don’t walk” signal was flashing but he was not aware of this. ¬†The Defendant was stopped in a tractor-trailer waiting for a green signal. ¬†As the Plaintiff walked in front of the Defendant’s vehicle an advance green arrow illuminated permitting the¬†Defendant¬†to start driving. ¬†The Defendant did not see the Plaintiff and struck him with his vehicle.
Both liability (fault) and quantum (value) were at issue in this trial. ¬†Mr. Justice Halfyard held that the Defendant driver was careless for failing “to keep a proper lookout” and for failing to see the Plaintiff who was “there to be seen“.
The Plaintiff acknowledged that he was also partially at fault. ¬†The¬†Court was asked to determine how much each party was to blame. ¬†Mr. Justice Halfyard found that the Plaintiff was more at fault and apportioned his blame at 75%. ¬†In reaching this distribution of fault the Court reasoned as follows:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find that the plaintiff‚Äôs degree of fault for the accident is considerably greater than the degree of fault of Mr.¬†Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr.¬†Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of¬†Funk v. Carter¬†2004 BCSC 866 (Williamson J.) and¬†Morrison v. Pankratz¬†1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In my opinion, liability should be apportioned as to 25% against Mr.¬†Guest, and 75% as against Mr.¬†Furness, and I so order.
The Court then dealt with the value (quantum) of the Plaintiff’s claim. ¬†The Plaintiff’s injuries and their course of recovery were summarized as follows:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Most of the injuries sustained by the plaintiff are not in dispute and I find them to be the following:
a)¬†¬†¬†¬†undisplaced fracture of the posterior aspect of the medial femoral condyle of the right knee;
b)¬†¬†¬†¬†tiny fracture of the very lateral aspect of the lateral tibial plateau, which was undisplaced;
c)¬†¬†¬†¬†¬†injury to the soft tissues in and around the right knee joint including a tear of the posterior horn of the medial meniscus;
d)¬†¬†¬†¬†other minor contusions and abrasions.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff complained of ongoing pain in his right ankle, which he attributes to the accident of February¬†13,¬†2007.¬†..
 I find that, by the time of trial, the plaintiff had substantially recovered from the injuries he sustained in the accident of February 13, 2007. There is no medical opinion evidence which causally connects the plaintiff‚Äôs present complaints to his injuries of February 13, 2007. Nor is there any evidence of objective medical findings that confirm the plaintiff‚Äôs ongoing complaints of pain in his knee. In these circumstances, I am not satisfied that the necessary causal connection between the accident and the plaintiff‚Äôs present complaints of physical pain has been proved. However, I do accept that the plaintiff is still experiencing some intermittent psychological effects from the accident, in the form of nightmares and fear of crossing the street. I find that these psychological effects are diminishing, and should not persist for much longer. The evidence does not establish a real and substantial possibility that these psychological symptoms will persist well into the future.
Mr. Justice Halfyard valued the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000. ¬†The Court then¬†reduced¬†this award by 75% to take into account the Plaintiff’s own blame for his injuries.
April 8th, 2010
(Illustration provided courtesy of Artery Studios Inc.)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages as a result of a 2007 BC motor vehicle collision.
In today’s case (Falati v. Smith) the Plaintiff was injured when he was struck by a vehicle. ¬†He was walking on the sidewalk on Marine Drive in West Vancouver when the Plaintiff’s vehicle mounted the curb, drove across the sidewalk and pinned the plaintiff against a building.
The Plaintiff suffered orthopaedic injuries described as “a crush-type fracture to his left tibia and a fracture to the fibula“. ¬†These injuries required surgical intervention with intermedullary nailing.
The Plaintiff made a reasonably good recovery although he continued to have symptoms of pain by the time of trial. ¬† His orthopaedic surgeon gave the following evidence with respect to prognosis and disability:
At this stage, Mr. Falati has only a mild amount of identifiable impairment in the left leg, ankle and foot. He does have evidence of pain symptoms in the leg and left ankle and left foot. However, he is noted to have essentially near normal motor power function as well as near normal range of motion. As such, his current impairment level is low. Nevertheless, there is an impairment present and the exact diagnosis underlying this impairment remains unclear. As a result, defining the likelihood of this impairment remaining permanent is impossible. It is important to note that disability represents the difference between what an individual is expected to do or required to do, and what they are capable of doing, due to the presence of a physical impairment. Since Mr. Falati still does have some evidence of physical impairment, albeit mild, some element of disability does remain. The probability of such disability remaining on a permanent basis seems very low with respect to the left knee and left tibia specifically. However, with respect to the left ankle, a more clear diagnosis would be required prior to making any estimate of permanence
In assessing his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Saunders reasoned as follows:
Neither of the orthopaedic surgeons whose reports are in evidence, Dr. Penner and Dr. Jando, have expressed an opinion that the plaintiff‚Äôs foot pain and resulting limitations are likely to be permanent; Dr. Jando has offered the option of further surgery to remove the hardware. The plaintiff‚Äôs general practitioner, Dr. Kates, has pointed to both surgery, and weight loss, as possible means of addressing the complaints of persistent pain. Dr. Kates does use the phrase, ‚Äúsome element of permanent left ankle disability‚ÄĚ, but as he goes on to point to the remaining hardware as a possible cause, I do not take him to mean ‚Äúirreversible‚ÄĚ. Although there is some possibility of a permanent disability in the present case, the evidence does not establish this to be a probability. Taking such possibility into account, I award the plaintiff non-pecuniary damages of $85,000.
March 15th, 2010
I‚Äôd like to take a quick moment to thank the good people at Artery Studios, Inc. in Toronto, Ontario.
Artery Studios specializes in the creation of custom medical illustrations, animations and interactive media for medico-legal and other purposes.
Here are two samples of their work:
If you are advancing a personal injury claim and are preparing for mediation or trial you should give serious consideration to obtaining custom designed demonstrative illustrations. The impact of quality demonstrative evidence in the legal process cannot be understated. When dealing with traumatic injuries pictures often speak louder than words and these illustrations can help educate Judges, Jurors and Insurers about the specifics of an injury claim. Education leads to persuasion which in turn can help achieve a better result.
Artery Studios Inc. has generously agreed to provide medico-illustrations for use in my blog posts. I look forward to displaying their work on this site and welcome the opportunity to enhance my articles with the use of these quality illustrations.
Thank you very much and welcome to the BC Injury Law and ICBC Claims Blog!
March 2nd, 2010
When I was growing up in Toronto I remember public service commercials often being played in the wintertime with the slogan “Be Nice, Clear Your Ice“. ¬†Due to the temperate climate of Victoria, BC I have not heard a similar public service announcement for years. ¬†That being said,¬†regardless¬†of where in Canada you live if you are responsible for a roadway/driveway/sidewalk/parking-lot that is covered in ice/snow reasonable steps should be taken to remove it. ¬†Not only is removing it from your property the sensible¬†thing to do, failing to do so can lead to a successful lawsuit and reasons for judgement were released by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (O’Leary v. Rupert) the Plaintiff rented a basement suite in the Defendants home. ¬†When returning from work one day the Plaintiff parked her car in the driveway and attempted to walk up the driveway to the stairs of her basement suite. ¬†It was dark outside and none of the lights were on. ¬†Before reaching the stairs the Plaintiff slipped and fell. ¬† The Plaintiff sued for damages and succeeded. ¬†In finding the Defendants liable Mr. Justice Voith found that they did not take reasonable steps to keep the driveway clear of hazards. ¬†Specifically the Court summarized and applied the law as follows:
 The obligation of the Ruperts under the Tenancy Agreement was to ‚Äúmaintain the residential property in a reasonable state of …. decoration and repair.‚ÄĚ Conversely, the obligation of Ms. O‚ÄôLeary under s. 10 of the Tenancy Agreement was to ‚Äúmaintain reasonable health, cleanliness and sanitary standards.‚ÄĚ In saying this, I recognize that as a matter of practice Mrs.¬†O‚ÄôLeary swept and shovelled the stairs and pathway leading to her suite.
 Second, as I have said, it is common ground that the Ruperts maintained and shovelled the whole of their driveway without ever suggesting to Mrs.¬†O‚ÄôLeary that this obligation properly fell to her. Liability may be imposed on a party who has voluntarily undertaken to do something they were not otherwise obligated to do: see¬†Goodwin v. Goodwin, 2007 BCCA 81, 64 B.C.L.R. (4th) 280, at para.¬†26. Where that voluntary task is performed negligently and causes foreseeable harm to a plaintiff, liability may arise. Once the Ruperts undertook to maintain and shovel the whole of their driveway, regardless of whether they were under a legal obligation to do so, they had a duty not to perform this task negligently.
 In¬†MacLeod,¬†Mr.¬†Justice Burnyeat listed a series of factors, and the legal authorities where they are referred to, that are relevant in considering whether an occupier has fulfilled the duty imposed by s.¬†3 of the¬†OLA. These factors include ‚Äúwhether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.‚ÄĚ
 In this case, the application of most of these factors, together with the factors I have referred to earlier that emanate from¬†Zavaglia, support the conclusion that the defendants breached the duty of care they owed to the plaintiff. The driveway of the Rupert home was sloped. I have found that it was routinely slippery and that it was icy on the night of January 12, 2007. It was dark on that evening and it was routinely unlit. These factors, in combination, gave rise to a situation that was unsafe or hazardous. In addition, the defendants knew that Mrs.¬†O‚ÄôLeary was required to cross over parts of the driveway, after exiting her car, to access her suite. Her use of the areas in question and the hazards it presented were thus foreseeable.
 In saying this, I recognize that we live in a relatively northern climate and that our winter weather conditions often create an environment that is inherently precarious. In¬†Brown v. British Columbia (Minister of Transportation and Highways),¬† 1 S.C.R. 420 at p.¬†439, the court said ‚ÄúIce is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented.‚ÄĚ
 Still further, I accept that the standard or test is one of ‚Äúreasonableness and not perfection‚ÄĚ:¬†Fournier v. Grebenc, 2003 NBQB 221,  N.B.R. (2d) (Supp.) No.¬†28 at para.¬†31. Finally, I recognize that this case deals with a residential home rather than an apartment building, as in¬†Neilson v. Bear,  B.C.J. No.¬†86 (S.C.), or a shopping centre, as in¬†Murphy v. Interprovincial Shopping Centres Ltd., 2004 NLSCTD 210, 241 Nfld. & P.E.I.R. 316, or a parking lot, as in¬†Parmar v. Imperial Parking Ltd.,  B.C.J. No.¬†486 (S.C.), where the standards and procedures established by the landlord in response to winter conditions are designed to accommodate greater volumes of personal traffic. Accordingly, they are likely to be more rigorous or exacting.
 Nevertheless, the conditions that existed at the Rupert home were unnecessarily unsafe. I say unnecessarily unsafe because with little effort and at modest expense the conditions on the driveway could have been much improved. The simple installation of lighting that worked either on a timer or on a motion detector would have provided Mrs.¬†O‚ÄôLeary with the illumination necessary to better see where she was walking. Both devices are inexpensive. Both would have addressed the inconsistency with which the Ruperts turned on their outside lights or the occasions where, as in the case of the evening when Mrs.¬†O‚ÄôLeary fell, they had not yet arrived home from work to turn on the lights.
 Similarly, the use of salt or some other traction agent would have addressed the icy condition of the driveway. Though the Ruperts were diligent about shovelling their driveway, that step, without more, was not enough. Once again this step would have been relatively inexpensive and would not have been time consuming.
 I am also satisfied that the failure of the defendants to take these measures to address the icy and precarious condition of the driveway caused Mrs.¬†O‚ÄôLeary to fall.
 It is noteworthy that the Ruperts have, since Mrs.¬†O‚ÄôLeary‚Äôs accident, both taped the switch for the outside lights open and begun to apply salt to their driveway following a snowfall. It is clear that post-accident conduct cannot be viewed as an admission of negligence:¬†Anderson v. Maple Ridge (District)¬†(1992), 71 B.C.L.R. (2d) 68, 17 B.C.A.C. 172 (C.A.) at p.¬†75. Nevertheless, in¬†Anderson, Wood J.A., as he then was, concluded that moving a stop sign after an accident was relevant to the question of whether it was difficult to see prior to the accident. Here the steps taken by the defendants post-accident are relevant to whether the driveway was dark and whether it remained slippery or icy after being shovelled.
 Similarly, post-accident conduct can be used as an indication of the ease with which a risk might have been avoided:¬†Niblock v. Pac. Nat .Exhibition.¬†(1981), 30 B.C.L.R. 20 (S.C.) at p.¬†25.
Mr. Justice Voith awarded the Plaintiff $25,000 for non-pecuniary damages. ¬†Her most serious injury was a “second degree sprain of her ankle” which continued to impede the Plaintiff in some recreational activities some two years later. ¬†There are not too many cases out there dealing with ankle sprains from the BC Supreme Court and this precedent may prove useful for others with similar injuries.