ICBC Law

Earlier this week I had the pleasure of being briefly interviewed by Gordon Hoekstra of the Vancouver Sun who was authoring a story on waivers of liability for sports organizations.  In short the article emphasized the need for organizations to clearly bring liability waivers to the attention of those signing them otherwise there is risk that the waivers will be ineffective.

For those of you who are visiting this site looking for more information addressing this topic you can click the following link to access my archived posts discussing waivers of liability in BC Injury Claims.

Lengthy reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of a personal injury lawsuit launched by a former NHL enforcer against the Delta Police and others following a 2006 assault which occurred at the Cheers Pub in Delta, BC.

In this week’s case (Burnett v. Moir) the Plaintiff suffered a moderately severe traumatic brain injury after being struck on the head with a bar stool.  The injury ended the Plaintiff’s professional hockey career.

There was video surveillance which showed “an assailant striking the plaintiff on the head with a bar stool taken from the premises afer he apparently stumbled and fell to the ground as he and the others were being ejected“.  The assailant was never identified.

The Plaintiff sued the owners and managers of the Cheers Pub, the local police, and the local government for compensation for his personal injuries.  Prior to trial he settled his case with the Pub.  The Plaintiff alleged that the local police and the local government were liable because they “failed to properly identify Cheers as a nuisance to the public, a trap for the unwary, and to take pre-emptive steps to abate the danger it represented to potential patrons”.

The Plaintiff led evidence to support his allegations including evidence that from 1998-2007 “there were a total of 2,410 police service calls to Cheers during that period, 231 of which were for assaults, 9 of which were for uttering threats, 10 of which were obstructing a peace officer, 138 for suspicious person/vehicle occurrences, 200 of which were for creating a disturbance, 217 for “unspecified assistance” and 1,605 of which were for “other”“.

Despite this evidence the lawsuit was dismissed with the Court finding that the Police and Local Government did not owe the Plaintiff a duty of care in these circumstances. Mr. Justice Cullen summarized his analysis as follows :

[411] The presence or absence of a close causal connection between the negligence alleged and the harm caused is a factor in determining proximity.  In Odhavji Estate v. Woodhouse, supra,Iacobucci J. held as follows in the context of a proximity analysis at para. 57:

Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties.

[412] Where, as here, the causal connection, insofar as the failure to warn is concerned, is remote and speculative rather than close, it cannot be said that the nexus between the parties is strong or compelling.

[413] For those reasons, while finding some limited evidence of a connection between the Delta Defendants and prospective Cheers patrons arising from the police corporate knowledge that a person entering Cheers was likely to be exposed to an environment involving some violent or turbulent circumstances, I am not satisfied the evidence reaches the level of establishing a close and direct relationship featuring the indicia of proximity identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth, supra, or manifested in other decisions such as Jane Doe, Mooney, orSchacht.

[414] I thus conclude the relationship at issue does not sustain sufficient proximity to found a duty of care.  The plaintiff was but one of a large indeterminate pool of potential patrons of Cheers, rather than an identifiable potential victim of a specific threat.

Last month the BC Court of Appeal released reasons for judgement clarifying that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  This week the BC Court of Appeal released further reasons for judgement providing a useful summary of the legal principles to be applied in these types of claims.

In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an ICBC adjuster, slipped and fell on ice at an Esso Station in North Vancouver.  He dislocated his knee and sued for damages.  At trial his claim succeeded and he was awarded just over $45,000 in damages.  The Defendant appealed arguing the trial judge misapplied the law.  The BC Court of Appeal disagreed and upheld the trial judgement.  In doing so the Court provide the following helpful summary of the legal principles in occupier’s liability litigation:

[26] The law on occupiers’ liability has gradually merged from the “rigid rules and formal categories” of the common law that “spawned confusion and injustice”, into the general principles that govern the law of negligence. See Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, ON: LexisNexis Canada Inc., 2011) at p. 705.

[27] The duty of an occupier is now governed by s. 3 of the Act, which provides:

Occupiers’ duty of care

3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the property, will be reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1) applies in relation to the

(a)   condition of the premises

(b)   activities on the premises, or

(c)   conduct of third parties on the premises.

[28] The standard imposed by the Act is one of reasonableness: the reasonableness of the system implemented to safeguard the particular risk on the premises, and the reasonableness of the implementation of that system. The standard of reasonableness is not one of perfection. As was noted by the trial judge at para. 55, citing Lamont v. Westfair Properties (Pacific) Ltd., 2000 BCSC 406 at para. 20, “An occupier is not expected to be an insurer against all risks[.]”

[29] The Act provides a complete code regarding the duty of an occupier of land. Reference to earlier common law cases is no longer required and may, in fact, result in legal error if the wrong standard of care (one based on the common law categories) is applied, rather than the statutory standard of care. The comprehensive nature of the standard of care of an occupier under the Actwas confirmed in Weiss v. Young Men’s Christian Association of Greater Vancouver (1979), 11 B.C.L.R. 112 (C.A.), where Mr. Justice Aikins, for the Court, noted at 118:

… In my view, s. 3(1) is comprehensive, in the sense that it fully and clearly imposes a duty on an occupier and defines the standard of care necessary to fulfil that duty. Thus, in my judgment, it is unnecessary to an understanding of the standard prescribed by the subsection to refer to any of the specially formulated standards of care laid down in the common law cases. Indeed, to do so is more likely to mislead than assist in understanding what the subsection says.

[30] As with any tort claim, the party advancing the claim carries the burden of proof on a balance of probabilities. The burden of proof in establishing liability under the Act was described inKayser v. Park Royal Shopping Centre Limited (1995), 16 B.C.L.R. (3d) 330 (C.A.) as follows:

[13]      The onus of proof on a plaintiff to prove the liability of a defendant on a balance of probabilities in a standard negligence action also applies in cases arising under the Occupiers Liability Act. As Wood J.A. held in Bauman v. Stein (1991), 78 D.L.R. (4th) 118 (B.C.C.A.) at 127:

Section 3 of the Occupiers Liability Act does not create a presumption of negligence against “the occupier of the premises” whenever a person is injured on the premises. A plaintiff who invokes that section must still be able to point to some act (or some failure to act) on the part of the occupier which caused the injury complained of before liability can be established.

Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, dealing with an interesting issue: Can a commercial occupier be sued for an intentional assault for having inadequate lighting in their alleyway.

In last week’s case (Vaughn v. Kelowna Speedometer Ltd.) the Plaintiff was a patron at the Blue Gator Bar and Grill in Kelowna, BC.  After several hours he left the pub.  As he was walking in the pub’s back alley he was “assaulted from behind and seriously injured“.  His assailant was unknown.  The Plaintiff sued the Pub alleging that the alley had poor lighting and this contributed to the assault.  Mr. Justice Shabbits dismissed the lawsuit finding that even if the lighting was inadequate for the conditions it did not cause the assault using the “but for” test.  In dismissing the claim the Court provided the following reasons:

[23] In my opinion, the plaintiff has not shown that but for proper lighting he would not have been injured. I agree with the submission that additional lighting may have reduced the risk of an assault, but lack of lighting did not cause the assault. The plaintiff could have been assaulted in daylight hours, or assaulted farther down the alley. It is speculation to infer that lighting was a factor in the assault occurring. Even assuming that the lighting at the rear of the Blue Gator was inadequate, the evidence is not capable of proving, on a balance of probabilities, that Mr. Vaughn would not have been injured had proper lighting been in place.

[24] Mr. Vaughn bears the burden of showing that “but for” the negligent act or omission, the injury would not have occurred. There is no evidence on which I would find that but for adequate lighting, the injury would not have occurred. I am of the opinion that it has not been shown, on a balance of probabilities, that a lack of lighting caused Mr. Vaughn’s loss.

Reasons for judgement were released today by the BC Court of Appeal discussing the standard of care for Occupier’s Liability lawsuits in BC.

In today’s case (Charlie v. Canada Safeway Limited) the Plaintiff slipped and fell near a display of flowers while shopping at Safeway in Duncan, BC.  The flowers were kept in water and when customers picked up the flowers for purchase they sometimes “could drip (water) on the floor”.  She was injured and sued for damages.

During her fall the Plaintiff knocked over one of the buckets of flowers spilling a considerable amount of water on the floor.  The Plaintiff could not offer direct evidence that dripped water made her fall but inferred that this was the cause of her fall.  At trial the Court refused to make this inference and dismissed the lawsuit.  The BC Court of Appeal dismissed the appeal finding there was no error in law in the Court refusing to draw the same inference the Plaintiff made.

The Plaintiff went further and argued that “there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk.”

The Court of Appeal rejected this argument and in doing so made it clear that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  The Court provided the following reasons:

[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.

In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:

[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.

b

Reasons for judgement were released this week by the BC Court of Appeal ordering a new trial following the dismissal of a trip and fall lawsuit.

In today’s case (Lennox v. New Westminster (City)) the Plaintiff was seriously injured while walking on a municipal sidewalk.   She alleged that she tripped because of “a discrepancy in the elevation between two panels of the sidewalk that had apparently shifted due to the roots of a large tree“.  She claimed the City was negligent and sued for damages.  A jury dismissed her case.  The Plaintiff appealed arguing the verdict was not reasonable and that the jury was misdirected by the trial judge.

The BC Court of Appeal found that while there evidence to justify the Jury’s verdict, a new trial was warranted because of the presiding judges directions to the Jury.  Specifically the judge charged the jury that “The plaintiff must prove that the city’s employees negligently carried out their responsibilities under the city’s written and unwritten inspection and maintenance policies.”

The BC Court of Appeal found this to be a fatal error as either a breach of the City’s written or unwritten policies could have constituted negligence.  In a 2-1 split the BC Court of Appeal ordered a new trial with the majority providing the following reasons:

[27] The question chosen by the trial judge in this case referred to the respondent’s written and unwritten policies in a conjunctive manner, leaving the potential for members of the jury to believe that the plaintiff’s case would have to fail, unless she proved a breach of both as opposed to either policy.  It was unnecessary for the appellant to establish a breach of both the written and the unwritten policies in order to succeed in her claim in negligence, and a misdirection amounting to an error in law results, if that is what the jury question required…

[34] While it is true that the trial judge instructed the jury on more than one occasion that the appellant’s case was argued in the alternative; that she asserted a breach of both the written and the unwritten policies, I do not consider that his summary of the appellant’s alternate theories of her case overcomes the potential that the single question asked of the jury may have caused them to conclude that the appellant had to establish breaches of both the written and the unwritten City policies in order to succeed…

As was the case in Laidlaw, the trial judge’s charge did not mirror the wording in the single question asked of the jury, and again, as in Laidlaw, the charge was inconsistent, here, as to whether the plaintiff needed to prove a breach of one or both of the respondent’s policies.  By the time the jury was completing its deliberations, their focus must have been on the question, which is clear in its terms but, unfortunately, had the potential to mislead them as to what the plaintiff needed to prove in order to succeed.  It is impossible to determine with confidence that the jury had understood its task in deciding if the respondent’s employees were negligent in carrying out their operational responsibilities in accordance with either, as opposed to both of the respondent’s written and unwritten policies.

[40] I would therefore accede to the first ground of appeal, and order a new trial.

Madam Justice Smith, in dissenting reasons, stated the charge was nothing more than a “latent ambiguity” and that a new trial was not warranted.

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:

[11]        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.

[12]        By 2009 Druet’s 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.

[13]        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…

[66]        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.

[67]        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.

[68]        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’ positions.  I award $55,000 under this head.

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, awarding damages for injuries sustained in a trip and fall incident.

In last week’s case (Etson v. Loblaw Companies Limited) the 76 year old plaintiff tripped and fell over a wooden pallet in an aisle while shopping at the Real Canadian Superstore.  The Court found that both the Plaintiff and Defendant were equally at fault for the incident.

The Plaintiff sustained a subcapital fracture to her right hip.  Initially this was treated with internal fixation although the Plaintiff’s pain continued.  She eventually required a total hip replacement following which she recovered reasonably well.  Madam Justice Fisher valued the Plaintiff’s non-pecuniary damages at $90,000 and in arriving at this figure the Court provided the following reasons:

[61]        Ms. Etson was quite reserved in her descriptions of the pain she experienced as a result of her injuries but there is no question that she suffered a tremendous amount of pain.  The initial injury was obviously very painful and it took Ms. Etson about four months to begin to resume her mobility sufficiently to be able to drive and do things for herself.  She suffered a debilitating set-back in August 2009 when the hardware failed and the femoral head in her hip collapsed.  Her mobility deteriorated and she was again unable to do things for herself.  She suffered tremendous and increasing physical pain for about eight months.  She underwent two additional surgeries.  The first, in January 2010, did not alleviate her pain or improve her mobility.  She did not experience any relief from the pain until April 2010 when she had the total hip replacement surgery.

[62]        Ms. Etson had been a very independent and active woman.  She was involved in painting and the arts and was very active in a local painting club and other community events.  After the accident, she was unable to continue any of this involvement and she had considerable difficulty maintaining her independence.  She had to rely on her sister and Ms. Erikson to help her with meals and other things.  She developed ways to get around her house and she managed as best as she could.  However, it is apparent that the severe limitations on her ability to participate in activities outside her home for close to a year and a half left her feeling very isolated.  Moreover, the accident occurred at a very difficult time in Ms. Etson’s life, when her daughter was in the later stages of a terminal illness.  While she said little about this, it was clear to me that her injuries made it practically impossible for her to visit her daughter before her death in April 2009.  Since the hip replacement surgery in April 2010, Ms. Etson’s condition has improved significantly but she has not yet found the spirit to return to her pre-accident activities and she is still not socially active.  I am satisfied that the injury is a factor here, but I also find that some of this lack of spirit is attributed to other factors, such as the death of her daughter.

[63]        Clearly, Ms. Etson’s injuries have had a profound effect of her life.  She has recovered reasonably well since April 2010 but she still has residual problems.  She is limited in how far she can walk, she still uses a cane when walking for more than two or three blocks and she has a bit of a limp. She is able to live independently now but she is still not able to do heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s comment that “there would have been some residual symptoms during her recovery from the hip replacement of about 3 months”.  This statement is not consistent with his own observations of her condition on September 27, 2010, and is not consistent with Ms. Etson’s evidence, which I do accept.  Her residual symptoms have lasted longer than that and while her prognosis is not entirely clear, it is likely that she will be able to resume most, if not all, of her pre-accident activities by the spring.

[64]        I do accept Dr. Moreau’s opinion that Ms. Etson will not require any further treatment or specific rehabilitation and that it is very unlikely that she will have any further problems or disabilities because of the hip injury…

[70] In this case, the injuries had a profound effect on Ms. Etson’s life.  Her active and independent life style, which was important to her, was seriously compromised for over a year and a half.  During that time she experienced significant pain and had to undergo three surgeries.  She is now able to resume most of her former activities but she still has some residual effects.  Given my findings, I assess non-pecuniary damages at $90,000.

(UPDATE November 18, 2011 - The 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 9^th and 10^th 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.