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.

Posts Tagged ‘bc injury law’

BC Supreme Court – Suggesting Driver At Fault for Collision Based on Past Convictions is “Frivolous”

October 2nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, describing the suggestion of deciding fault for a collision based in part on a motorist’s past driving convictions as ‘frivolous’.

In today’s case (Rezai v. Uddin) the Plaintiff was a pedestrian involved in a collision with the Defendant.  Fault was disputed.  Prior to trial the Plaintiff sought to amend her pleadings to allege “The Defendant Driver had on several previous occasions driven in a manner that put pedestrians and motorists at risk of injury” based on

a.   on Nov. 27, 2008, the defendant was charged with speeding, for which he plead guilty;

b.   on Dec. 4, 2008, the defendant was charged with failing to yield to a pedestrian on a green light, for which he plead guilty;

c.   on December 5, 2008, the defendant was charged with entering an intersection when the light was red for which he plead guilty;

d.   on March 11, 2009, the defendant was charged with speeding, for which he plead guilty;

e.   on January 17, [2015], the defendant was charged with using an electronic device while driving. He failed to appear at the hearing and was deemed not to dispute the charge.

The court rejected this request noting that past convictions likely do not constitute similar fact evidence.  In dismissing the application Master Wilson provided the following reasons:

[22]         The parties agree that there is no British Columbia authority on the issue of whether a pleading alleging similar fact evidence in the context of a prior driving record should be allowed in British Columbia. The defendant refers me to some Ontario authorities in support of his position that such pleadings are improper.

[23]         In Wilson v. Lind, (1985) 35 C.C.L.T. 95, O’Brien J. struck from the pleadings allegations of prior or subsequent impaired driving by the defendant. The application was brought on the basis that the allegations were prejudicial, scandalous or an abuse of process, a rule akin to our R. 9-5(1). At paragraph 12 the court held the following:

Our Courts have held for a long time, and for good reason, that prior negligence of a party is generally irrelevant to proof of subsequent negligence. …

[24]         I note that of the five driving infractions in our case, only two of them are for the same offence, namely speeding. Both were over five years old at the time of the accident. Indeed four of the five convictions were over five years old, with the fifth occurring some months after the accident. The defendant was not issued a violation ticket arising out of the accident.

[25]         The only possible purpose for Similar Fact Pleading here, given the variety of infractions, would be to enable the plaintiff to suggest that the defendant is a generally bad driver based on his driving record. However, this does not inform the analysis of whether or not he was responsible for the subject accident, any more than a clean driving record would tend to absolve him of responsibility.

[26]         It is highly improbable that the trial judge would admit the defendant’s prior infractions as similar fact evidence to support a finding of liability on the part of the defendant. Evidence of prior speeding infractions does not lead to the inference that the defendant was speeding at the time of the accident. Drivers often speed without receiving violation tickets. Proof of speeding does not conclusively establish negligence in the case of an accident. In Hamm Estate v. JeBailey (1974), 12 N.S.R. (2d) 27, evidence of driving record and habits was held to be irrelevant and inadmissible for the purpose of determining liability.

[27]         In Witten v. Bhardwaj, [2008] O.J. No. 1769, the court was asked to strike certain portions of a statement of claim that also involved a pedestrian struck by a vehicle. The plaintiff had pleaded that the defendant had a ‘pattern of reckless conduct’ that included multiple speeding offences. The allegations of speeding in the Witten case were a year before and a year after the accident in issue.

[28]         After reviewing the decision of Wilson v. Lind, Master Haberman said that there were only two purposes for the plea about the defendant’s driving record and held the plea should be struck regardless of which applied:

The plaintiff’s purpose in including these additional allegations about Paawan’s driving patterns could only involve one of two issues: 1) to enable the plaintiff to ask the court to rely on Paawan’s driving record when assessing whether he was likely speeding at the time of this accident; or, 2) to provide “colour” for the court, so that Paawan will be viewed as a bad driver generally, and hence, be seen as likely responsible for this accident. If the former, what the plaintiff seeks to plead in the impugned portion of paragraph 15 is clearly evidence, not material fact, and on that basis should be struck. If the latter, it is frivolous and should be struck.

[29]         I agree. The Similar Fact Pleading is either evidence and therefore improper to include in a pleading, or is intended to suggest that the defendant is generally a bad driver and therefore he is more likely to be the cause of the subject accident, in which case it is frivolous.


$220,000 Non-Pecuniary Assessment for Leg Amputation and Chronic Pain

September 28th, 2017

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

In today’s case (Bye v. Nelson) the plaintiff was operating a dirt bike which was involved in a collision with an ATV operated by the Defendant.  The collisions caused severe injuries including a left leg amputation.

In assessing non-pecuniary damages at $220,000 Madam Justice Choi provided the following reasons:

[3]             …Not in dispute is that Mr. Bye’s dirt bike and Mr. Newman’s ATV collided near a curve in the road. Both vehicles were damaged, and Mr. Bye was left with a number of injuries including a fracture to his neck and multiple fractures to his legs. Although Mr. Bye was rushed to the hospital, his injuries required a through-knee amputation of much of his left leg.

[93]         Mr. Bye is a young man. He was 35 years old at trial and 31 at the time of the accident. He was an active man who enjoyed various recreational pursuits. He had been employed by Teck Metals as a carpenter commencing February 2010. It was a job he loved, which paid him handsomely.

[94]         The injuries from the accident have changed his life dramatically forever. He now suffers from daily pain and fatigue as a result of the amputation and is permanently disabled from returning to carpentry work and to many of his recreational activities. He testified that, before the accident, he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming, and that his injuries have either cut off, or severely limited his enjoyment of these.

[95]         Additionally, Mr. Bye is now a father, with his son born during the litigation, in 2016. While he is still able to play with and care for his son, many of these interactions are made more difficult by his injury. He testified to the difficulties of lowering himself to the floor to spend time with his son…

[102]      Mr. Bye has been dealing with his injuries since he was 31. He will continue to face difficulties for the rest of his life. Considering all the evidence, the Stapley factors, and case law submitted by the parties, I conclude an award of $220,000 is fair and appropriate in all the circumstances.


Negligent Ski Resort Saved From Liability Based on Waiver

September 27th, 2017

Big White Waiver

Reasons for judgement were released today by the BC Supreme Court dismissing a lawsuit against a negligent ski resort based on a waiver patrons must agree to when using their facilities.

In today’s case (Fillingham v. Big White Ski Resort Limited) the Plaintiff was skiing on a short cut at the end of a ski run named ‘highway 33′  to a parking lot which was, at the time, open for use for skiers.  Shortly prior to this a snowplow came through exposing users of the path to a 10 foot drop to the parking lot.  The Plaintiff fell, was injured and sued for damages.

The Court found that the ski resort was negligent with Madam Justice Adair noting as follows

…as of Noon on March 4, 2013, when Mr. Fillingham was coming down Highway 33 , the rope line at the short cut was still open.  However, the path had been removed, thereby creating a hazard if the short cut was used, and the open rope line failed to mark or warn of that hazard.

[39]        I find further that, in not taking steps after clearing snow in the Solana Ridge parking lot to ensure the rope line at the short cut from Highway 33 was closed, BW Limited failed to take reasonable care and was negligent.

Despite the finding of negligence the Court went on to dismiss the lawsyuit noting a broad worded waiver covered this situation.  In reaching this conclusion the court provided the following reasons:

[51]        On the other hand, when I apply the analytical framework described by Binnie J. to the Exclusion, in my view, the intention is clear:  it is to exclude liability on the part of the Ski Area Operator to the Ticket Holder for “all risk of personal injury . . . resulting from any cause whatsoever” [underlining added].  “Any cause whatsoever” specifically includes, but is not limited to, negligence on the part of the Ski Area Operator.  Mr. Fillingham, as I have found, was very familiar with this language.  He had seen it many times, and carried on his activities on the basis that he was assuming “all risk of personal injury,” including, without limitation, risk of personal injury caused by the negligence of BW Limited.  That is what Mr. Fillingham did at Big White on March 4, 2013.

[52]        Mr. Fillingham, based on his evidence, knew that some of the time, the short cut was roped off, and some of the time it was not.  The essence of his complaint in this action is that, as of about Noon on March 4, BW Limited failed to adequately mark – by closing the rope line – a hazard it had created, and was negligent in doing so.  I have found that BW Limited was negligent.  However, in my view, what occurred is not so extraordinary or unique that it could be said the parties did not intend for it to be covered by the Exclusion.

[54]        Mr. Berezowskyj submitted that, if the Exclusion were found to be valid and broad enough to encompass Mr. Fillingham’s claim, then there are strong public policy reasons for preventing a recreational operator from relying on a ticket waiver to avoid liability in circumstances where it actively creates the hazard from which its guests were not properly protected, and were in fact invited to court.  However, in my opinion, this is not a case where an overriding public policy (evidence of which was thin at best) outweighs the case in favour of enforcement of the Exclusion.


Court Denies Defense Request to X-Ray Plaintiff in Personal Injury Claim

September 22nd, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, denying a defense request to include an X-ray as part of the defense medical examination process.

In today’s case (Tani v. Baker) the Plaintiff sued for damages as a result of a 2015 collision where she sustained a broken leg and shoulder.

The Plaintiff consented to attend an defense medical examination but refused to consent to an X-ray that the physician requested.  The Defendant applied to court to compel the X-ray.  In dismissing the request Master Muir provided the following reasons:

[7]             The law with respect to medical appointments is not really an issue. Rule 7‑6(1) of the Supreme Court Civil Rules provides that the court can order an examination by a medical practitioner or other qualified person if the mental or physical condition of a person is at issue in an action.

[8]             The plaintiff notes, and I will not put it higher than that, that Rule 7‑6(3) provides specifically that a person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined. There is no equivalent particularization of other testing that might be performed.

[9]             I think I can assume that often physical tests are performed on plaintiffs, but that does not include what the plaintiff refers to as intrusive investigation or intrusive testing. The argument is that if the mere statement that an expert needs certain intrusive testing is taken at face value, then any such test could be ordered and I will add, regardless of the potential ill effects of such an examination or test.

[10]         It is common ground here that there is some danger to cumulative X-Ray examinations. That was not contested by the defendant. He acknowledged that there were health concerns but argued that the intrusive argument was simply not made out here and that the testing was required so that the defendant can be on an equal footing with the plaintiff in investigation of her ongoing injuries.

[11]         The plaintiff notes that they have no updated X-Rays, however. She argues that given the purpose of the rule, which is to put the parties on an equal footing, if the plaintiff does not have any evidence of diagnostic imaging and her existing expert’s and family physician’s reports do not lead to any necessity for further imaging, then there is no basis for an order for the defendant to have such imaging.

[12]         The plaintiff’s family physician apparently says that the breaks are healing properly and that there is no further requirement for treatment. The plaintiff submits that there is an onus on the defendant applicant to show that there is a specific need in this case.

[13]         I note that in his affidavit, Dr. Stone makes no specific reference to this plaintiff. He simply notes that in order to conduct a useful IME report and give an informed medical opinion, he would require “updated and thorough medical records, including x‑ray image of the relevant injured area taken at a date no earlier than six months before a given IME appointment”. He does not say why. He does not say that he has reviewed the other medical records of this plaintiff nor does he provide any basis for a need for updated X-Ray imaging.

[14]         Further, I take the plaintiff’s point that if the plaintiff chooses to go to trial without updated X-Ray imaging and proceed on the basis of expert reports produced without such imaging, then, in my view, there is no basis on which I should order that the defendant have the benefit of this intrusive testing. I will use the plaintiff’s word.

[15]         I should add that the parties were unable to point me to any specific case that deals with this kind of application for such intrusive tests. I am not saying that it would not be ordered if there was a proper basis for it, but on the circumstances before me today, I am not satisfied that there has been any proper basis shown or any need for the X-Rays and the application is dismissed.


Vehicle Dealer Found at Fault For Crash By Thief By “Leaving a Truck Available to be Stolen”

September 13th, 2017

If you own a vehicle that is stolen and the thief injures others in a collision can you be liable?  According to a case released today by the BC Supreme Court, the answer is yes.

In today’s case (Provost v. Bolton) the Defendant stole a truck owned by Chevrolet Dealership. After stealing the vehicle a police pursuit occurred and several crashes arose.

There was no dispute that the thief was liable.  In an interesting development the Court went on to find that the dealership was liable as well and the police bore some liability for engaging in the pursuit.  In finding the dealership partly liable Mr. Justice Kelleher provided the following reasons:

[14]         At about 8:58 a.m. on April 24, 2012, Mr. Katerenchuk left an unlocked one-ton 2011 GMC Sierra K2500 pickup truck (the “Truck”) outside a detail bay at the dealership Dueck. The Truck had been sold and was to be detailed that morning in preparation for delivery to the purchaser.

[15]         The Truck was left outside the dealership detail bay by Mr. Katerenchuk with the keys in the ignition, the engine running, and the doors unlocked. The Truck was parked in an area open to public view. Anyone walking or driving along Terminal Avenue past the dealership could see the Truck, along with other vehicles on the lot, if they looked in that direction.

[16]         The dealership is not fenced in. It is an open area where people can walk around the vehicles…

[19]         The Truck remained parked outside, with the keys in the ignition, the engine running, and doors unlocked for about 40 minutes when the defendant, Mr. Bolton, got in the Truck and drove away…

[146]     Here, I find that it is reasonably foreseeable that a stolen vehicle would cause serious damage and injuries to the police and bystanders in the vicinity of where the police are attempting to recover the stolen vehicle from the thief.

[147]     The Dueck employees called and expected the police to quickly attend to recovering the stolen Truck. Moreover, Dueck authorized OnStar to activate the GPS tracking system in the stolen Truck for the purpose of assisting the police in locating the Truck so that it could be recover

[148]     The circumstances in this case differ from those in cases like Hollett and Spagnolo where the accidents did not occur during the theft.

[149]     I am satisfied that, in these circumstances, it was reasonably foreseeable that persons and property may be injured or damaged during the recovery of a vehicle by the police in the immediate aftermath of a theft…

[161]     In sum, Dueck had a duty to Constable Provost and Ms. Brundige and the Attorney General to secure the vehicle in its lot and Dueck breached this duty and this breach caused the injuries and damages.

In finding the police partly liable for engaging in the pursuit the Court noted as follows:

[188]     Here, I conclude that the breach of the standard of care by RCMP officers is on the part of Constable Whitney, Constable Lee and Corporal Waldron. All three officers engaged in a high speed pursuit of the truck in an urban area in the middle of the day. Moreover, they did not appropriately comply with an order to terminate the pursuit when it was made by Staff Sergeant Stark and repeated by Corporal Peters.

[189]     Constable Whitney heard the order to discontinue the pursuit. His duty was to deactivate his lights and sirens (which he did) and to stop the vehicle at the side of the road and state his location. He did not stop and do that. Instead, he continued following the Truck on River Road…

[201]     Constables Lee and Whitney and Corporal Waldron proceeded to follow the vehicle. I find that they were, as Mr. Laughlin and Constable Hartigan testified, proceeding quickly. Their actions, on a balance of probabilities, caused Mr. Bolton to continue to drive at a high rate of speed. On the evidence, but for their pursuit, the accident with Ms. Brundige would not have occurred.

[202]     I find the defendant, the Minister of Justice for the Province of British Columbia, liable for the negligence of the officers.


Court Rejects Defence Doctor As Not A “Reliable and Credible Witness”

September 7th, 2017

A finding that a witness lacks credibility is damaging.  This is particularity so when it comes to an expert witness for hire.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such a finding with respect to a a doctor hired by Defendants in a personal injury claim.

In today’s case (Palangio v. Tso) the Plaintiff was injured in two collisions and sued for damages.  The Defendants admitted fault but disputed the plaintiff’s injuries.  In the course of the lawsuit the Defendants had the Plaintiff assessed by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries.  In finding that this expert witness lacked reliability and credibility Madam Justice E.A. Arnold-Bailey provided the following critical comments

[222]     I did not find Dr. Sovio to be a reliable and credible witness in this case. With regard to reliability I find that Dr. Sovio was quick to assume that the Plaintiff was trying to conceal facts that could be material to his examination, for example, in relation to the subsequent accident, whereas had he read the letter of instruction he was sent prior to his examination of the Plaintiff he would have appreciated there was nothing secret about the Subsequent Accident and that the Plaintiff had disclosed it to other medical experts. Furthermore, I note that certain turns of phrase Dr. Sovio used in his report created a negative or false impression of the Plaintiff, like “he seems to be convinced he needs these [the lidocaine injections administered by Dr. Caillier] on a regular basis or he gets more discomfort.” This statement by Dr. Sovio creates the impression that the Plaintiff determines that he needs these injections, completely overlooking Dr. Caillier’s involvement as the pain treatment specialist who administers them. His choice of language is designed to imply that the Plaintiff is malingering or exaggerating his pain in terms of continuing to need the injections. This is contrary to the impartiality the Court expects from an expert witness.

[223]     I also note that Dr. Sovio is not qualified to provide opinion evidence on chronic pain and pain management. He admitted that he has no training with regard to the treatment of headaches, and that he has had no clinical training regarding the treatment of pain.

[224]     In addition, Dr. Sovio was quick to assume that the First and Second Accidents were very minor accidents involving relatively minor forces. Initially he was evasive about his sources, and then when referred to a portion of the record that did not necessarily support such a conclusion, he resorted to his overall impression gleaned from the records. It is also to be noted that Dr. Sovio had no criteria as to what informed his opinion that an accident was minor, relatively minor, or moderate. I find his assessment of the nature of the accidents and the forces involved to be purely subjective and outside his area of expertise.

[225]     Dr. Sovio neglected to refer to the pain he had noted the Plaintiff to have at his C2-3 vertebrae in the “Impressions and Discussion” section of the report, referring only the Plaintiff experiencing mild discomfort on palpation of the paravertebral muscles. I find that he was inaccurate in summarizing his findings, or he was careless. I do not accept his evidence as he tried to explain this oversight away. Either way, the reliability of his report and his testimony was further undermined.

[226]     Where the opinions of Dr. Sovio as to the causes, extent, or treatment of the Plaintiff’s injuries arising from the First and Second Accidents conflicts with the opinions of Dr. Caillier, Dr. MacInnes, and/or Dr. Sidhu, I reject Dr. Sovio’s evidence without hesitation. Even Dr. Sovio acknowledged that an orthopedic examination may not reveal findings in relation to individuals experiencing legitimate pain and chronic pain, and in my view the Plaintiff is precisely such an individual.


$110,000 Non-Pecuniary Assessment For Chronic Low Back Pain

September 6th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic back pain caused by a collision.

In today’s case (Teunissen v. Hulstra) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The crash caused a soft tissue injury which was chronic and partly disabling in nature.  In assessing non-pecuniary damages at $110,000 Madam Justice Burke provided the following reasons:

[67]         I conclude the medical evidence clearly establishes Mr. Teunissen suffered a soft tissue injury in the accident and continues to suffer from chronic back pain. It also establishes the accident is a material contributing cause to Mr. Teunissen’s back injury, pain and resulting disability…

[92]         Mr. Teunissen is a determined and stoic individual who has persisted in trying to work and support his family, despite the chronic pain. He has demonstrated this more than once, attempting work opportunities that he previously would have had no difficulties with and which he unfortunately cannot continue.

[93]         The assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Teunissen’s age, the nature of the injuries, the severity of his symptoms and the fact they have been ongoing for five years, the poor prognosis for recovery, and the authorities, I am of the view the appropriate award for non-pecuniary damages is $110,000.


Soft Tissue Injuries “Substantially Resolved” After 5 Years Given $45,000 Non-Pecuniary Assessment

August 31st, 2017

Adding to this site’s soft tissue injury database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries that “substantially resolved” in about 5 years.

In the recent case (Nguyen v. Bhatti) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The Plaintiff suffered various soft tissue injuries which, the court found, were largely improved by the time of trial.  The Court assessed non-pecuniary damages at $45,000 and reduced this by 10% finding the Plaintiff failed to mitigate damages by not seeking out some treatments which could have assisted.

In arriving at this assessment Madam Justice Fitzpatrick provided the following reasons:

[126]     Having considered the entirety of the evidence, I conclude the following in relation to the injuries asserted by Mr. Nguyen:

  1. a)Pre-existing injuries: I find that Mr. Nguyen had snoring and sleep issues well before the accident which negatively affected his mental cognition (ability to concentrate, memory issues and his reported “fogginess”) and caused fatigue and lethargy. I do not accept the evidence of the Nguyens that there were no sleeping problems prior to the accident. Ms. Nguyen describes her husband’s sleeping patterns before the accident as “normal”. Nevertheless, the medical records reveal a significant snoring problem. Even Ms. Nguyen confirmed that when he snored, she often had to poke him to wake him up and stop. This could only have contributed to a less than restful sleep, which he now attributes solely to the accident. Finally, there is no medical evidence to support that these sleeping and cognition issues, to the extent that they continued after July 2012, are linked to the accident: Deo v. Wong, 2008 BCCA 110 at paras. 19-20, leave to appeal refused [2008] S.C.C.A No. 229;
  2. b)Neck, back and right shoulder: I accept that Mr. Nguyen suffered soft tissue injuries in these areas, which was an aggravation of his injuries arising from the 2009 accident which were continuing to some extent in July 2012. I find that Mr. Nguyen was greatly improved in these areas by late 2014/early 2015 and that he continued to improve after that time. I reject Mr. Nguyen’s evidence that he remains in constant daily neck, shoulder and back pain at this time. Largely based on the testing of Dr. Marks in April 2017 and Dr. Wee’s notes arising from the May 2017 visit, I find that his symptoms were substantially resolved by the spring of 2017;
  3. c)Other injuries: the defence made submissions regarding complaints identified by Dr. Wee relating to Mr. Nguyen’s right arm and elbow. As Mr. Nguyen did not assert these as a compensable injury at this trial, I will not address them further. Mr. Nguyen did assert injury to both shoulders, although Dr. Wee confirmed only injury to his right shoulder arising from the accident. Dr. Lee’s opinion does not provide any clarification in respect of this alleged injury. I accept that the first indication of any left shoulder injury only arose in September 2015 when he reported to Dr. Rapoport that he was having trouble in that area only 5-6 weeks prior. There is no medical evidence to support that he had any ongoing left shoulder injury as of September 2015 arising from the accident. I agree with the defence that if such an injury arose in 2015, it was unrelated to the accident.

[161]     In my view, the cases cited by the defence are more in line with Mr. Nguyen’s injuries, the effects on his life and the extent of his recovery, as per my findings above. I award the sum of $45,000 for non-pecuniary damages, less a 10% reduction for the failure to mitigate, resulting in a net award of $40,500.


Road Rage Assault Leads to $800,000 Civil Judgement

August 22nd, 2017

Reasons for judgement were published this week assessing damages for a plaintiff who sustained serious injuries following a road rage assault.

In this week’s case (McCaffery v. Arguello) the parties were involved in a road rage incident resulting in the Defendant existing his vehicle and  repeatedly striking the Plaintiff  “with the baseball bat, causing him serious but non-life-threatening injuries to his head, chest, left arm, hand, and wrist.

The Defendant was criminally convicted for his actions.  In the civil lawsuit damages of just over $800,000 were assessed with findings that the assault caused Complex Regional Pain Syndrome along with other partially disabling injuries.

In assessing non-pecuniary damages at $200,000 Madam Justice MacNaughton provided the following reasons:

[37]         Dr. Negraeff examined Mr. McCaffery on March 9, 2016 and diagnosed the following injuries:

a)    Complex Regional Pain Syndrome Type 1: Left Hand (“CRPS”);

b)    persistent headache attributed to mild traumatic injury to the head;

c)     moderate to severe sleep disturbance secondary to chronic pain and headaches; and

d)    moderate to severe mood disturbance with anxiety and depression secondary to chronic pain and headaches.

[38]         Dr. Negraeff explained the CRPS is a form of chronic pain that usually develops in a limb after an injury to it. There are two types of CRPS depending on whether a distinct nerve injury is confirmed. In the first type, there is no confirmed nerve injury and in the second, such a nerve injury is confirmed. The hallmarks of CRPS are pain which is out of proportion to the injury and a combination of symptoms that can include swelling, skin colour and temperature changes, sweating, hair and nail growth changes, and disturbances to the movement or coordination of the limb…

[45]         I conclude that at the age of 28, in the few moments in which the Incident occurred, Mr. McCaffery became a different person. The effects of the assault will redefine Mr. McCaffery for the rest of his life, both physically and psychologically. He no longer sees himself as a “big strong guy” who could do, and did, nearly everything.

[46]         Mr. McCaffery’s personality change has also affected what had been a very positive, close, and harmonious family relationship among Mr. McCaffery, his wife, and their three children. All of Mr. McCaffery’s family witnesses testified about how his symptoms have affected his relationship with Ethan, who has been most affected by his father’s personality change and physical limitations. Ethan was old enough to have experienced and remembered his father’s much more engaged and affectionate relationship with him before the Incident. Ethan misses the activities he used to do with his father and is cautious about not hurting him.

[47]         Mr. McCaffery’s continuing pain has caused sleeplessness, and his headaches are often accompanied by dizziness…

[56]         Based on all this evidence, I conclude that Mr. Arguello’s actions have caused Mr. McCaffery to suffer debilitating and disabling injuries which have had significant life-changing effects and that, as a result, he should be compensated with a substantial award of non-pecuniary damages…

[79]         Taking all these considerations into account, I have concluded that an appropriate award for Mr. McCaffery’s pain, suffering, and loss of enjoyment of life is $200,000.

The Court went on to note that punitive damages were warranted even though the Defendant was criminally convicted.  In assessing punitive damages at $30,000 the court provided the following reasons:

[122]     At para. 33 of Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA 277, referring to Whiten v. Pilot Insurance Co., 2002 SCC 18, Justice Gerow reviewed the factors a court should consider when determining whether to award, and the quantum of, punitive damages. In addition to the overall purpose of such damages, in relevant part, the factors she outlined included that:

a)    punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff, and any advantage or profit gained by the defendant;

b)    punitive damages should take into account any other fines or penalties suffered by the defendant for the misconduct in question;

c)     punitive damages should generally only be awarded where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence, and denunciation;

d)    the purpose of punitive damages is to give the defendant her or his “just desert”, deter the defendant, and others, from similar misconduct, and to mark the community’s collective condemnation about what has happened. Punitive damages are only awarded when compensatory damages are insufficient to accomplish these objectives;

e)    punitive damages are awarded in an amount that is no greater than necessary to accomplish their purposes and are generally moderated; and

f)      the court should assess whether the conduct of a defendant should be punished over and above the requirement to pay non-pecuniary, pecuniary, and aggravated damages.

[123]     In this case, Mr. Arguello was prosecuted and convicted of assault with a weapon and assault causing bodily harm. He was sentenced to a six-month conditional sentence, during which for three months he was subject to a curfew, and one year of probation. At the sentencing hearing, Mr. Arguello’s criminal counsel submitted to Judge Moss that the fact that Mr. Arguello was facing a civil lawsuit for damages should be a factor in favour of a conditional sentence. In his sentencing reasons, Judge Moss considered the fact of the civil lawsuit.

[124]     The compensatory damages I have awarded are significant, but they compensate Mr. McCaffery for his actual losses and damages. In the circumstances of this case, I am satisfied that an award of punitive damages is also necessary to make it clear to the public that Mr. Arguello’s conduct departed so markedly from the ordinary standards of decent behaviour as to be worthy of further punishment.

[125]     Mr. Arguello’s decision to follow Mr. McCaffery’s vehicle for five kilometres up the Upper Levels Highway, cut aggressively in front of it, slam on his brakes and cause a collision, and then to exit his vehicle with a baseball bat with which he repeatedly hit Mr. McCaffery, cannot be countenanced in civil society where hundreds of thousands of drivers use our roads and encounter driving manoeuvres which upset or anger them. Road rage incidents are increasingly common in our busy lives and on our busy roads as drivers’ jockey for position. They cannot be tolerated.

[126]     I accept that Mr. Arguello expressed regret for the injuries he caused by his behaviour, but at the same time, he asked for consideration for the legal fees he expended to defend himself criminally and the impact of the Incident on his family. As the person determined to be fully responsible for the Incident, both criminally and civilly, his submissions indicated to me that he had not entirely understood the community’s condemnation of his behaviour.

[127]     Therefore, in addition to the compensatory damages I have ordered, I award Mr. McCaffery the sum of $30,000 in punitive damages.


Cyclist With No Recollection of Collision Has Claim Dismissed Against Unidentified Motorist

August 14th, 2017

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing an injury claim against involving an unidentified motorist because the Plaintiff had, due to injuries, no recollection of the collision and no evidence to establish driver negligence.

In today’s case (Salo v. ICBC) the Plaintiff was riding his hybrid bicycle in close proximity to an SUV when something occurred and a witness “saw the bicycle and Mr. Salo inmid-air” about ten feet behind the SUV.”.

The Plaintiff suffered a brain injury in the event and had “absolutely no recollection as to what happened“.  The SUV driver was not identified.  The witness did not see what exactly transpired to send the Plaintiff airborne.

The Plaintiff sued for damages alleging the SUV driver was negligent.  The Court dismissed the claim finding the above did not discharge the Plaintiff’s burden of proof on a balance of probabilities.  In dismissing the claim Mr. Justice MacKenzie provided the following reasons:

[39]         In this case there is no direct evidence as to what caused Mr. Salo to become airborne when the SUV was stopped at the stop sign.  Both counsel have suggested possible scenarios or explanations as to what might have happened, some more fanciful or implausible than others.  But, as the defendant asserts, absent any evidence “about the movements of the SUV before the collision”, it would be pure speculation to infer negligence on the part of the SUV driver.  In addition, whether the SUV turned right a few seconds after Mr. Cunningham observed it stopped at the intersection or a moment or two later, this, in my view, does not assist the court in determining what caused Mr. Salo to become airborne near the rear of the SUV, or in drawing an inference that the SUV driver was negligent.

[40]         Given the paucity of evidence as to what occurred on July 3, 2014 when Mr. Salo unfortunately suffered significant injuries while riding his bicycle, I agree with the defendant when it submits there are no positive proved facts from which I can infer that the unknown driver was negligent.

[41]         As a result, the action is dismissed.  Subject to any agreement between the parties, the defendant is entitled to costs on Scale B.