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.

$95,000 Non-Pecuniary Assessment For Chronic Wrist and Thumb Injury

November 21st, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hand injury caused by a vehicle collision.

In today’s case (Burke v. Schwetje) the Plaintiff was involved in a 2010 collision caused by the Defendant.  The Defendant admitted fault.  The collision caused a hand and thumb injury resulting in permanent partial disability.   The Plaintiff did, however, have a number of pre-existing issues which likely would have led to some overlapping disability described as “a number of quiescent but present conditions in his hands and wrists that would likely have become increasingly symptomatic over time in any event of the Collision.

In assessing non-pecuniary damages at $95,000 Madam Justice Russell provided the following reasons:

[117]     I am aware that the plaintiff has not been able to continue as a commercial fisherman since 2013 and before that, had some serious functional limitations on his abilities. His culture, his friendships and his livelihood have all changed substantially since the Collision and because of the Collision.

[118]     The plaintiff’s right wrist symptoms were aggravated significantly by the Collision and he has had continuing pain in his thumb and his wrist for which he takes OTC medications and may choose to have one or possibly two surgeries.

[119]     As a man of 67 at the time of the Collision, his career has been shortened by the aggravation of his previously only mildly symptomatic arthritis.

[122]     Given the agreement of the defendants with the quantum of non-pecuniary damages which the plaintiff seeks and my finding that that amount is appropriate in the circumstances, I award him $95,000.

[123]     The award of damages under this head includes an amount for loss of housekeeping or gardening capacity


No – You Can’t Call Evidence Suggesting Your Client is a Criminal Without Instructions

November 20th, 2017

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.

In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.

Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.

The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.

In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).

In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.


Potentially “Harsh” Result No Reason To Strike Jury in Injury Claim

November 14th, 2017

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff request to strike a jury notice in an ICBC injury claim.

In the recent case (Froese v. Wilson) the 17 year old Plaintiff who “became severely intoxicated at a house party” left riding in the cargo box of a pickup truck which then moved and “caused him to fall out of the truck.”.

The Plaintiff sued for damages and the matter was set down for a 20 day trial with the Defendant electing trial by jury.  The Plaintiff objected noting that a total of 19 expert witnesses would likely testify, the matter was too complex for a jury and the jury “may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability“.  The court noted that while this may be true it is no reason to strip a party’s right to trial by jury.  In reaching this conclusion Mr. Justice Smith provided the following reasons:

[17]         This trial is set for 20 days—a length no longer unusual for a jury trial. Although there is a multiplicity of expert evidence, it comes from experts in fields that are commonly at issue in personal injury cases and there appears to be a great deal of common ground as to the nature of the injuries suffered by the plaintiff in the motor vehicle accident. As said above, the main areas of disagreement relate to the long-term impact of those injuries and the cause of the plaintiff’s ongoing symptoms. I am not persuaded that those areas of disagreement are so complex that they cannot be considered by a properly instructed jury on the basis of properly presented and explained expert evidence.

[18]         Counsel for the plaintiff also alluded to a concern that a jury may take a harsher view of the plaintiff’s conduct than would a judge in assessing liability. That is entirely speculative and I presume jurors will be attentive to whatever instructions the trial judge gives them on how they are to go about assessing the relative blameworthiness of both parties. However, the possibility that a jury verdict may reflect community attitudes that differ from those of judges is one of the frequent justifications for retaining the jury system.

[19]         Counsel also argues that the outcome of this trial may determine the course of the rest of the plaintiff’s life and subjecting him to the uncertainties inherent in a jury trial is inconsistent with the object of a just determination on the merits set out in R. 1-3.

[20]         Although I have a certain sympathy with the plaintiff’s concern about the risks and uncertainties in a jury trial, the fact remains that R. 12-6 continues to give either party the right to unilaterally select trial by jury. Unless the party who does not want a jury trial can meet the onus of showing that it is not appropriate in a particular case and the presumptive right to a jury trial should be denied, a jury trial and verdict must be considered to come within the “just determination” envisioned by R. 1-3.

[21]         The plaintiff has failed to meet the onus in this case and the application to strike the jury notice must be dismissed.


BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

November 7th, 2017

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.

In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.

The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages.  The BC Court of Appeal disagreed.  In upholding the trial result the Court provided the following reasons:

[54]         Failure to mitigate is a positive allegation that should be pleaded and argued at trial:  Hosking v. Mahoney, 2010 BCCA 465 at para. 34.  Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55]         In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56]         The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate.  A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57]         In my view, the respondents’ pleading is clearly not deficient.  In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury.  Here the pleading is explicit.

[58]         Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis.  These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59]         The issue of mitigation was both specifically pleaded and extensively explored at trial.  Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment.  Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath.  The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60]         In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages.  I see no merit to this ground of appeal.


BC Court of Appeal – Medico-Legal Reports Are Not Mandatory for Injury Claim to Succeed

October 31st, 2017

In what is one of the longest running personal injury claims I have come across, reasons for judgement were published today by the BC Court of Appeal finalizing a lawsuit started over 20 years ago.

In today’s case (Jalava v. Webster) the Plaintiff was tackled and badly injured by the Defendant who was “under the mistaken impression that Mr. Jalava had left the café without paying his bill“.

The Plaintiff started a lawsuit in 1996.  He was self represented.  He obtained an order that the Defendant pay him damages to be assessed.  The claim dragged on for years without an assessment taking place and a Chambers Judge eventually dismissed the claim noting that “ it was legally impermissible for the Court to assess damages for personal injuries without a medical-legal report“.

The Plaintiff appealed and BC’s highest court overturned the result noting that a medico-legal report was not a required part of a personal injury prosecution.

The court did, however, in the absence of medical evidence assess a token judgment of $100 noting “this matter has dragged on long enough“.

In commenting on the need of medico-legal reports in personal injury lawsuits the Court noted as follows:

[11]         First, there is no legal rule to the effect that in order to have damages for personal injury assessed, a plaintiff must adduce a medical-legal report into evidence: see Reible v. Hughes [1980] 2 S.C.R. 880. There is no doubt that such reports are very helpful and that without one, it is difficult for a judge to assess damages. In this case, for example, Mr. Jalava told the Court that he had suffered a broken clavicle and a “banged up knee” as a result of the assault, but had no details of the injuries or the financial consequences he had suffered. At this point in time, several years after the assault, it would appear no further information is likely to be brought forward.

[12]         However, since the plaintiff obtained judgment for assault, an intentional tort, it was open to the Court to award a nominal sum. Even if the tort had been negligence, the Court could have given an award of damages that would at least give some recognition of Mr. Jalava’s injuries.

[13]         I also agree with counsel that the chambers judge should not have dismissed Mr. Jalava’s claim on his own motion and without prior notice to Mr. Jalava. The plaintiff was taken by surprise and, being unrepresented, was not able to make a meaningful attempt to forestall such an order. Finally, since Mr. Jalava had already obtained judgments against the defendants, it was simply not possible to dismiss “the claim”. The claims had been reduced to judgments years ago and those judgments could not be reversed or nullified except under Rule 3-8 of the Supreme Court Civil Rules or by this court on appeal.

[14]         In all the circumstances, then, the appeal must be allowed and the chambers judge’s order set aside. Since this matter has dragged on long enough, I would also assess Mr. Jalava’s damages at $100.


$70,000 Non-Pecuniary Assessment for Chronic, Non-Debilitating Soft Tissue Injuries

October 30th, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries following a vehicle collision.

In the recent case (Dosangh v. Xie) the Plaintiff was involved in a rear-end collision in 2013.  The Defendant admitted fault.  The crash caused soft-tissue injuries which lingered to the time of trial and had a guarded prognosis for full recovery.  In assessing non-pecuniary damages at $70,000 Mr. Justice Weatherill provided the following reasons:

[96]         I accept that the plaintiff continues to suffer the consequences of the Accident and that her condition has developed into one of chronic pain, the severity of which depends on her level of activity, particularly at work and at home. The more active she is and the more she pushes herself, the more significant her pain.

[97]         But, I also find that the plaintiff is moving in a positive direction in terms of her recovery despite her daughter’s and Ms. Hundal’s evidence to the contrary. My assessment is that they were both doing their best to help the plaintiff’s case and were perhaps not as objective as they could have been…

[101]     I accept that the plaintiff received soft tissue type injuries in the Accident that have not resolved. I accept that she continues to be in pain, although not the type of pain that is debilitating. The plaintiff is able to function at work and at home, but with ongoing limitations. She can perform the duties she did before the Accident, but in pain, some days worse than others.

[102]     The fact that the pain moves around her body depending on what she is doing, for example from the left shoulder to the right shoulder and back depending on if she is over-using an area, is, in my view, not overly significant. That is the nature of chronic pain, which could be non-organic and psychologically based.

[103]     I accept that the past four years since the Accident have taken a toll on the plaintiff. She struck me as somewhat of a perfectionist at work and at home and she has been unable to meet her own expectations. Her energy is reduced. That has no doubt affected her psychologically resulting in her depressed mood…

[108]     In the end, the assessment of general damages is based on the individual plaintiff and how the injuries have affected him or her physically, psychologically, vocationally, socially and recreationally. I have considered the plaintiff’s particular circumstances here, the fact the Accident occurred over 4 years ago, my assessment of the plaintiff as a witness, the chronicity of her pain together with the fact that she is improving but with a somewhat guarded prognosis. I am satisfied that with the continued counselling and therapies that I am ordering, she will continue to improve, will continue to function, but will experience ongoing pain to some degree.

[109]     I assess general damages at $70,000.


$150,000 Non-Pecuniary Assessment for Chronic Facet Joint Syndrome

October 19th, 2017

Reasons for judgement were release today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a motor vehicle collision.

In today’s case (Zwinge v. Neylan) the Plaintiff was invoked in a head on crash that the Defendant admitted responsibility for.  The collision resulted in a chronic facet joint syndrome of the spine, various soft tissue injuries and chronic pain leading to psychological difficulties.  This was imposed on pre-existing a substance abuse disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $150,000 Mr. Justice Branch provided the following reasons:

[68]         In this case, I would summarize the significant factors as follows:

1.     The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.

2.     The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.

3.     The plaintiff’s pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.

4.     The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.

5.     The plaintiff’s anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.

6.     While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard’s confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.

7.     The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.

8.     Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.

9.     The plaintiff’s quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.

10. The plaintiff has been able to live independently and care for himself since the accident.

[71]         Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000.


Chronic Pain and Depression With Guarded Prognosis Leads to $180,000 Non-Pecuniary Assessment

October 18th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries caused by a collision.

In the recent case (Ali v. Padam) the Plaintiff was a passenger in a vehicle struck by a commercial van.  Fault was admitted by the offending motorist.  The crash resulted in chronic physical and psychological injuries with a poor prognosis for substantial recovery.  In assessing non-pecuniary damages at $180,000 Mr. Justice Blok provided the following reasons:

[230]     From the evidence at trial I conclude that in the immediate aftermath of the accident Ms. Ali had pain in her right chest, right wrist, right shoulder and her back.  The other areas resolved reasonably soon but the back pain gradually increased to the point, three months post-accident, of periods of very severe pain.  This pain worsened and she began to have symptoms in her left leg.  She could not walk or stand for any extended length of time.  She soldiered on at work but avoided lifting or bending, and by the end of the work day she was exhausted.

[231]     Ms. Ali’s left leg symptoms became worse.  She was now dragging her leg as she walked.  Her back pain became worse as well.  She had disc decompression surgery, focused on her leg symptoms, in June 2014.  Her left leg symptoms improved although her back pain remained.

[232]     Ms. Ali fell into depression, and was ultimately diagnosed with major depressive disorder.  She has anxiety and nightmares and in that respect has been diagnosed with PTSD.  Her chronic pain and depression combine and aggravate one another.  She does little in the way of activities with her son aside from walking him to and from school.  She is at least somewhat dependent on others for such things as bathing, dressing and going to the toilet.

[233]     As noted earlier, Ms. Ali’s reports of her physical difficulties are, to some extent, at odds with her actual level of functioning, particularly as shown in surveillance video.  I do not suspect she is being untruthful, but instead I conclude that she sees herself as more disabled than she actually is.

[234]     Formerly a cheerful and active person, Ms. Ali has isolated herself from her loved ones.  She is irritable and ill-tempered.  Her relationship with her husband is poor.  She feels a sense of worthlessness and has had thoughts of suicide.  She does, however, have some good days when she is happy.

[235]     In brief, as a result of the accident Ms. Ali has chronic pain, PTSD and major depressive disorder that combine in a debilitating fashion and have severely affected all aspects of her life.  Although there is a consensus amongst the medical professionals that Ms. Ali should have and participate in a comprehensive, multidisciplinary rehabilitation program, those professionals essentially agree that her prognosis for recovery is “guarded” and her prognosis for a substantial recovery is poor.

[237]     I conclude that the plaintiff’s cases, in particular Sebaa and Pololos, were broadly similar to the present.  In both cases non-pecuniary damages of $180,000 were awarded.  Accordingly, I conclude that $180,000 is a proper assessment of non-pecuniary damages in this case.


BC Court of Appeal Confirms Limited Small Claims Appeal Rights

October 18th, 2017

Reasons for judgement were released today by the BC Court of Appeal confirming the limited appeal rights from small claims lawsuits.

In the recent case (Jacques v. Muir) the Plaintiff brought a medical negligence claim in small claims court that was dismissed based on a previous release that was signed.  The Plaintiff appealed to the BC Supreme Court where the claim dismissal was upheld.

The Plaintiff then further appealed to the BC Court of Appeal who confirmed that the Supreme Court order was final and no further right of appeal exists in the circumstances.  In upholding the claim dismissal the Court provided the following reasons:

[15]       Section 13 of the Small Claims Act sets out the powers of the Supreme Court on an appeal in a small claims action. Section 13(2) states “there is no appeal from an order made by the Supreme Court under this section.”

[16]       The chambers judge properly held that s. 13(2) precludes an appeal to this Court of the order dismissing Ms. Jacques’s application. As this Court said in Pour, “no order of the Supreme Court made in appeal proceedings in a small claims action can be appealed to this Court” (at para. 7).

[17]        Moreover, s. 5 of the Small Claims Act sets out the avenues for appeal from an order made by a Provincial Court judge:

Right of appeal

5  (1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.

(2) No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1).

[18]       As the order of Judge Low was not made “after a trial”, arguably pursuant to s. 5(2) of the Small Claims Act the order was not appealable at all, but I need not decide this issue in the circumstances.

[19]       For these reasons I would dismiss the application to vary. 


Punitive Damages Awarded Against Suspended Driver Involved in Hit and Run Collision

October 16th, 2017

In a rare case awarding punitive damages in a motor vehicle collision case reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, making such an award.

In the recent case (Howell v. Machi) the Plaintiff pedestrian was struck by a motorist who fled the scene of the collision.  The Plaintiff was jaywalking at the time and found partly at fault for the crash.  The Defendant was identified.  He had a suspended licence at the time of the collision.  In finding these circumstances warranted an award of punitive damages Madam Justice MacNaughton provided the following reasons:

[517]     Ms. Howell was unable to refer me to any case in which punitive damages had been awarded in a motor vehicle accident case involving a hit-and-run. However, in Legualt v. Tiapis, 2015 BCSC 517, Master Harper dismissed an application to strike a claim for punitive damages against a breached defendant for leaving the scene of an accident on the basis that she could not conclude that the punitive damages claim would prejudice or embarrass the fair trial of the proceeding. As that case did not proceed to trial, there is no authority for whether punitive damages are appropriate in a hit-and-run situation.

[518]     Punitive damages have been awarded against defendants who have shown reprehensible conduct in causing motor vehicle accidents. For example, punitive damages have been awarded in the following cases relied on by Ms. Howell:

·       In McIntyre v. Grigg, 83 O.R. (3d) 161 the Ontario Court of Appeal reduced a jury’s $100,000 punitive damage award to $20,000 against a defendant driver whose blood alcohol level, at the time of the accident, was two to three times over the legal limit;

·       In McDonald v. Wilson, [1991] B.C.J. No. 3137, Justice Hood awarded $5,000 in punitive damages and $1,000 in aggravated damages against a defendant driver who intentionally tried to strike the plaintiff. Similarly, in Stevenson v. Vance, [1988] N.S.J. No. 384, $2,500 in punitive damages was awarded against a defendant who intentionally ran over the plaintiff’s legs after stealing from a store in which the plaintiff worked as a security guard; and

·       In Herman v. Graves, 1998 ABQB 471, a plaintiff was awarded $3,500 in punitive damages arising from a road rage incident and, more recently, in McCaffery v. Arguello, 2017 BCSC 1460, I awarded $30,000 in punitive damages arising from a road rage incident.

[519]     I have concluded that Mr. Machi’s actions are worthy of denunciation and retribution beyond the compensatory awards I have made in favour of Ms. Howell. In particular, although I concluded that his failure to stop after striking Ms. Howell did not amount to further negligence on his part, it is relevant to the punitive damages analysis. I have also taken into account the fact Mr. Machi has repeatedly shown complete disregard for the suspensions of his driver’s licence.

[520]     In all the circumstances, I award Ms. Howell punitive damages of $100,000 against Mr. Machi.