ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Pelvis Injury Cases’ Category

$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

December 12th, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.

In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision.  Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries.  In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179]     The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180]     Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181]     With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182]     On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183]     Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184]     Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185]     Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186]     I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192]     Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.


$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

July 24th, 2015

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.

In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.


Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

December 26th, 2014

Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.

In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.

The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 


$100,000 Non-Pecuniary Assessment For Pelvic Fracture Leading to Permanent Partial Disability

June 11th, 2013

Adding to this site’s archived cases addressing hip fracture non pecuniary awards, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury.

In this week’s case (Dunn v. Lyon) the Plaintiff was injured in a motorcycle collision in 2008.  The Defendant was fully at fault for the incident.  The Plaintiff suffered from various orthopaedic injuries primarily involving her low back and hip.  These went on to pose long term difficulties disabling her from her usual occupation as a server. In assessing non-pecuniary damages at $100,0000 Madam Justice Baker provided the following reasons:

[27]         No medical witness testified at trial and the language used to describe Ms. Dunn’s injuries in the clinical records and in the three expert reports is technical, but counsel agreed that the primary injury can be most briefly described as multiple pelvic fractures.  The fractures and other injuries are summarized on page 4 of Ms. Bos’s report as follows:

- left superior and inferior pubic rami

- right pubic tubercle

- left sacral ala

- left L5 transverse process

- widening of the left SI joint

- displaced bony fragment in the left S3 sacra foramina

- right anterior acetabular rim fracture

- haematomata involving piriformis and iliopsoas muscles

[28]         I infer that none of the fractures, although serious, involved significant displacement, as Dr. O’Brian decided surgery was not required.  Ms. Dunn was admitted to an orthopedic ward for bed rest although permitted to sit up in a chair provided that she did not put weight on the left side of her pelvis.  Her pain was treated with a variety of drugs, including Morphine with Gravol, Oxycodone and Tylenol…

[59]         Not unexpectedly, Ms. Bos’s opinion is that Ms. Dunn does not have the capacity to work either as a waitress or a janitor due to limited standing tolerance, decreased walking speed and limited stooping/bending tolerance.  Her primary limitation, according to Ms. Bos, is “standing/weight bearing tolerance”.   Ms. Bos’s opinion is that Ms. Dunn would benefit from vocational testing and assistance with job search…

[94]         Having considered the authorities referred to and comparing the situations of the plaintiffs in those cases to that of Ms. Dunn, I award $100,000 for non-pecuniary damages.


$130,000 Non-Pecuniary Assessment For Complex Pelvic and Knee Fractures

March 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.

In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk.  Although the Defendant disputed liability he was found fully liable for the collision.

The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries.  The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis.  In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons:

[46]         Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11.

[47]         Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively.

[48]         Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked.

[49]         Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg.

[50]         Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated…

[76]         In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.

 


$250,000 Non-Pecuniary Assessment for "Open Book" Pelvic Fracture

April 13th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in 4 motor vehicle collisions.

In last week’s case (Scoates v. Dermott) the Plaintiff was involved in multiple collisions.  He was found faultless for all of them.  The collisions resulted in numerous injuries the most serious of which was an open book‘ pelvic fracture.  The consequences of his injuries disabled him from his own occupation as an ambulance attendant and largely disabled him from any other occupation.  In assessing non-pecuniary damages at $250,000 Mr. Justice Smith provided the following reasons:

[171] In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of Appeal set out a non-exhaustive list of factors to be considered including: the age of the plaintiff; the nature of the injury; the severity and duration of pain; the degree of disability; the impairment of family, marital, and social relationships; and loss of lifestyle.

[172] Reference to any and all of those factors in this case reveals a profound impact. The initial injuries and their immediate aftermath were horrific.  Although the plaintiff’s recovery was remarkable in some respects, his ongoing pain and disability, combined with the psychological difficulty and frustration of adjusting to that pain and disability, are likely to have severe adverse effects for the rest of his life.  Those effects will be felt in all his daily activities and in his family and social life.

[173] An additional factor in this case is the extent to which the plaintiff is affected by the loss of his pre-injury career.  The loss of income is, of course, separately compensated, but the plaintiff so enjoyed his job, and defined himself so much in reference to that job, that his inability to return to work as a paramedic magnifies his loss of enjoyment of life.

[174] I have considered the cases of Grewal v. Brar, 2004 BCSC 1157, Izony v. Weidlich, 2006 BCSC 1315, Lines v. Gordon, 2006 BCSC 1929,  Dikey v. Samieian, 2008 BCSC 604, andZawadzki v. Calimoso, 2010 BCSC 1952. Considering the awards made in those cases, comparing the injuries in those cases to those in this case, and most important, considering the individual circumstances of the this plaintiff and the impact of his injuries on his life, I find  an appropriate award of non-pecuniary damages to be $250,000.

[175] In awarding non pecuniary damages of $250,000, I have not overlooked the submission of defence counsel that cases awarding non-pecuniary damages below the upper limit but in excess of $200,000 frequently involve a finding of ongoing effects from organic brain injury.  Although I have found the plaintiff’s cognitive, emotional and personality difficulties may result from the complex interaction of chronic pain and depression, rather than organic brain injury, the intractable nature of those problems makes the distinction largely irrelevant.


A Costly Reality: Unrecoverable Interest and "Litigation Loans"

March 28th, 2012

In Canada there are several litigation loan companies in operation that provide financing for injured Plaintiffs.  In short they provide loans and use the plaintiff’s personal injury claim as collateral.  They charge interest for this service, sometimes this interest is incredibly steep.

Plaintiffs need to exercise great caution before taking on such high interest loans for the simple reason that the interest is likely not a recoverable damage in their personal injury lawsuit.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.

In yesterday’s case (Campbell v. Swetland) the Plaintiff sustained multiple injuries in a catastrophic motorcycle collision.  These included brain injury with cognitive impairment, an open book pelvic injury, incontinence and a host of other orthopaedic and soft tissue injuries.  The parties settled some issues before trial including non-pecuniary damages agreed at $290,000.

Prior to trial the Plaintiff borrowed funds from a litigation loan company.  By the time of trial the interest on these loans was over $42,000.  The Plaintiff sought to recover this interest.  Mr. Justice Wong concluded such a claim is not sustainable as it is too remote.  The Court provided the following reasons:

[91] The plaintiff in opening and closing submissions has claimed interest incurred on loans post accident in order to complete necessary renovations to her home and funds to cover her living expenses. She submitted that post accident, with her severe injuries, she was incapable of gainful employment. Her only source of income was a $900 monthly government disability cheque. Hence the loans from lending institutions with high rates of interest. The total interest now owing from two loans is now $42, 453.

[92] It should be noted the plaintiff’s claim for the cost of financing her loans is not pled in her Notice of Civil Claim.

[93] The Defendant submits that it is not a recoverable head of damage. It is not known to law, by virtue of remoteness, or it is a special damage; special damages have already been resolved by agreement of the parties…

[96] In employment law, interest paid on monies borrowed to cover personal expenses while in between jobs have been held not to be recoverable as special damages [Millman v. Leon’s Furniture Ltd. [1983], 83 CLLC 14,071 ((Ont. Co. Ct.) and Kozak v. Montreal Engineering Co. (1984), [1985] 2 WR 641 at page 647 (Alta. Q.B.)].

[97] Similarity, in contract law, losses arising from a plaintiff’s impecuniosity or lack of financial resources have been held not recoverable [Freedhoff v. Pomalift Industries (1971) 19 DLR 3d 153 at page 158 (Ont. C. A.)]…

[99] The Plaintiff spent the initial months post-accident in hospital, but her first lawyer arranged a $30,000 “litigation loan” on November 13, 2008. Of that $30,000, $3,000 was immediately paid as a “processing fee”. After 18 days, $600.00 of interest was already due and owing.

[100] The Defendant submits that the loan was a result of the Plaintiff’s pre-accident indebtedness, not any losses sustained by the Plaintiff as a result of any negligence by the Defendant. If they were, then such losses are too remote and were not reasonably foreseeable to the Defendant.

[101] If a person’s own impecuniosity is the cause of damage, then that damage is not recoverable [Roopam Fashions v. Greenwood Insurance and Broco (2008) BCPC 0254].

[102] The Defendant further submits that the Plaintiff has not reasonably mitigated her financial situation. She has not tried to sell off her classic and prize-winning Harley motorcycle, her exercise machine and the clay art remaining in her studio.

[103] The cost of litigation financing, while not a recoverable head of damage, may be a proper disbursement. However, the most recent law out of both British Columbia and Ontario is that claims for litigation loan financing and interest are not recoverable [MacKenzie v. Rogalasky, 2012 BCSC 156 and Giuliani v. Region of Halton, 2011 ONS C5119]. In Giuliani, Mr. Justice Murray commented that the loan which the Plaintiff had obtained from Lexfund Inc. was:

in effect a contingency arrangement which allows the lender to make huge profits from the proceeds of litigation rather than from a commercially normative interest rate on a risky loan. (para. 52)

and

I am in complete agreement with the submissions of Defendants’ counsel that: “this Court should not reward, sanction or encourage the use of such usurious litigation loans, which in this case has interest provisions that are arguably illegal, otherwise such loans will be seen to be judicially encouraged and could become a common-place tactic.” I agree that an award of interest in this case would likely have an adverse impact on other Defendants’ decisions to proceed to trial or to Appeal. I think the Defendants’ counsel is correct in stating that access to justice is a two-way street. As I have indicated above, to award interest as requested by the [Plaintiff’s counsel] would not facilitate access to justice and would undoubtedly bring the administration of justice into disrepute. (para. 59)

[104] I agree with defence counsels submissions on this head of claim and conclude that it is not recoverable.


$200,000 Non-Pecuniary Damage Assessment in Jay Walking Collision

September 26th, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with fault for a collision involving a jaywalking pedestrian.

In last week’s case (Wong-Lai v. Ong) the elderly Plaintiff and her husband where involved in a serious collision in 2009.  It was a dark and rainy Vancouver Autumn evening.  As they crossed the street to return to their car they were struck by a vehicle driven by the Defendant.  The Plaintiff was not in a marked cross-walk at the time.  Her husband died and the Plaintiff suffered severe injuries.

The Court found that while the Plaintiff was jay-walking she should have been visible to the Driver.  The Court found that the driver was not paying sufficient attention and assessed him 25% at fault.  In reaching this conclusion Mr. Justice Sewell provided the following reasons:

[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries…

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%.  Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

The Plaintiff’s damages were assessed at just over $307,000.  $200,000 of this assessment were for the Plaintiff’s non-pecuniary loss.  In arriving at this figure Mr. Justice Sewell provided the following summary of the Plaintiff’s injuries:

[65] In this case Ms. Lai suffered very grievous injuries. She was struck by a car which I have found to be travelling at close to 60 kilometres per hour.  A good summary of her injuries is found in the report of Dr. Ng.  It is as follows:

1) Gross bleeding from urine requiring emergency urological consultation. A CT cystogram ruled out bladder rupture. Ct scans of the kidneys did not show any severe renal damage and she only required observation and support. However angiogram showed the pelvic fractures has ruptured blood vessels and she had bleeding in the blood supply to the pubic bone and these required embolisation to stop the bleeding.

2] Cervical Cl C2 unstable fracture. This required immobilisation and stabilisation in a collar and traction for the first eight weeks. She also has a moderate central cervical disc protrusion at level C6-7 which indented her cervical spinal cord.

3] Chest contusions left upper lobe, right middle lobe, and multiple rib fractures of the left 3 to 6 ribs and left 8 rib.

4) Multiple pelvic comminuted fractures bilaterally, namely superior and inferior pubic rami. She required immobilisation for her neck and leg fractures as well as for these fractures for the first eight weeks. She remained in the intensive care unit for a few weeks for treatment and stabilisation of all her injuries.

5) The left Tibial and left Fibular fractures require manual reduction and internal fixations on December 1, 2009. She returned to the intensive care unit post operatively.

6) Brain injury, which on CT scan showed multiple bleeding present inside areas of her brain and a small subdural hematoma (within the skull but outside the brain), located in between the cerebral hemispheres. There is a large left scalp hematoma. Her conscious levels and neurological state were monitored in intensive care over the next few weeks

[83] In my view the most important factors in this case are the severe and painful injuries suffered by Ms. Lai, the marked degree of permanent disability, the loss of independence and the increased risk of morbidity and mortality identified in Dr. Guy’s opinion.  I also note that Ms. Lai’s stoicism and determination to make the best of her predicament should not diminish the amount of damages awarded to her.

[84] I have reviewed the numerous decisions on pecuniary damages involving serious injuries cited to me by counsel.  These cases are all of course fact specific.  My review of them, coupled with a consideration of the principles restated in Stapley, leads me to conclude that an award of non pecuniary damages in the amount of $200,000 is appropriate in this case.


Landlord Liable for Guest’s Fall From Balcony

December 15th, 2010

(UPDATE November 18, 2011The case discussed below was upheld in reasons for judgement released today by the BC Court of Appeal.  These can be accessed here)

Reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, discussing the duties of landlords to take reasonable steps to make sure buildings they own are safe for tenants and guests.

In today’s case (Jack v. Tekavec) the Defendant owned an apartment in Gold River, BC.  He rented this out to a third party who invited the Plaintiff over.  While visiting the Plaintiff “leaned against a balcony railing which gave way.   (He) plummetted three stories to the ground and was badly injured“. The Plaintiff sued the building owner arguing he was careless for failing to keep the balcony railing in good repair.  Mr. Justice Savage agreed.  In finding the Defendant at fault for the Plaintiff’s injuries the Court stated as follows:

[38]         The evidence establishes that the defendant, as owner and operator of the apartment block, is a landlord pursuant to s. 1 of the RTA.  I find that the defendant is responsible for the repair and maintenance of the deck and owes a duty of care pursuant to s. 6 of the Act to the guests of his tenants including Jack.

[39]         That duty of care includes, in my opinion, a duty to inspect.  The duty to inspect is part of the duty of the landlord to take reasonable care in carrying out the responsibility for the repair of premises under the Act. ..

[44]         In this case the defendant knew of a problem with the balcony railing before the tenancy commenced.  The tenants requested that he repair the balcony railing but he chose not to do so.  The defendant was also aware that the tenant, through Billy, took it upon herself to effect a repair when he did not respond to the requests.  The defendant saw that the work done by the tenant was not done properly.

[45]         The defendant knew that Billy, who did the work, was not skilled.  Although this repair was his responsibility, as the landlord responsible for maintenance, and he knew the work was done wrongly, he chose not to fix it.  He was well aware of the danger of improper work on the balcony railing.

[46]         In my opinion Tekavec owed a duty of care to Mark and to Mark’s guests including Jack.  The standard of care required that he respond to requests of tenants to inspect the tenanted premises regarding the safety problems they raised.  The standard of care also required that, if a tenant did work on a balcony railing that he saw was wrongly done, that he inspect and repair or cause to have repaired the balcony railing himself.

[47]         By choosing inaction he breached the standard of care of a reasonable landlord responsible for such maintenance.  His breach of the standard of care was a direct cause of the accident and Jack’s injuries.

[48]         In the result, I find Tekavec liable to Jack for damages.

The Plaintiff’s damages included an award of $100,000 for non-pecuniary loss.  In arriving at this figure the Court noted the extent and severity of the injuries which were summarized as follows:

[15] Briefly, Jack’s multiple injuries included a broken pelvis, fractured ribs, fractured vertebrae, and internal injuries resulting in hernias.  While in hospital he developed pneumonia requiring a tracheotomy.  His pelvis fracture required a metal plate and screws.  He pelvis fracture healed but he has lost 2” in height.  He now weighs less than 200 lbs and walks with a slight limp.  After six months he returned to work but is now unable to do heavy lifting.  ..

[63]         I have earlier briefly described Jack’s injuries (paras. 13, 14, and 15).  I will not repeat that description here.  His diagnosis was as follows:

(a)        Vertically instable fracture of left side of pelvis involving fractures of the sacrum and symphyseal disruption;

(b)        Stable disruption of the right SI joint; bilateral transverse process fractures of L4 and 5 vertebra; left transverse process fractures of the Li and L2 vertebra;

(c)        Cecal volvulus resulting in right hemicolectomy; facial fractures not requiring intervention;

(d)        Post trauma aspiration pneumonia with respiratory compromise requiring tracheostomy;

(e)        Fracture of left 9th and 10th rib;

(f)         Post operative problems included mild infection of lower part of the abdominal incision; incisional hernia requiring surgery; mild malunion of let hemi pelvis resulting in 1 to 1.5 centimeter shortening of left leg; degenerative changes at the lumbar spine involving L4-5 and 12-S1 levels.

(g)        Pelvic x-rays revealed slight malunion with the left hemi-pelvis being approximately 1 to 1.5 centimeters higher than the right; posterior screw is slightly bent in keeping with this shift in position; hip joints are normal on x-ray; lumbar spine x-rays show degenerative changes at L4-5 level and L5-S1 level. …

[70] In my view, an appropriate award in these circumstances for past and future pain and suffering, loss of amenities and other non-pecuniary losses is $100,000.