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 ‘Han v. Chahal’

$140,000 Non-Pecuniary Assessment for “Very Serious” Femur Fracture

September 9th, 2013

Adding to this site’s archived caselaw dealing with non-pecuniary damages for femur injuries, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with such a claim.

In this week’s case (Han v. Chahal) the Plaintiff pedestrian was injuries when she was struck by the Defendant’s vehicle while walking in a marked cross walk.  The Defendant was found fully responsible for the crash.  The Plaintiff suffered a variety of injuries the most serious of which was a fractured femur.  Although the Court found some issues with the Plaintiff’s reliability as a witness the Court did accept the injury left her with a degree of chronic pain and limited function.  In assessing non-pecuniary damages at $140,000 Mr. Justice Verhoeven provided the following reasons:

[154]     In summary, the plaintiff was physically healthy prior to the accident.  She suffered a very serious injury to her femur and a moderate injury to her wrist.  These injuries have healed uneventfully from a physical point of view, after two surgeries to her leg.  No specific ongoing organic cause for her hip pain has been established.  Although she likely overstates her degree of disability, she has developed chronic pain, in relation to several areas of her body.  She has depression and anxiety.

[155]     Her major complaint of pain is with respect to her left hip.  When she saw Dr. Chin February 3, 2010, about 14 months after the accident, she had 75% to 80% improvement in her orthopedic injuries, but since then she has development several new pain complaints and, overall, her condition has not improved.  Her chronic pain and depression have resulted in altered mood, lack of energy, fatigue, irritability, and some cognitive difficulties.

[156]     The accident caused a drastic change to the plaintiff’s pre-accident health, lifestyle, and enjoyment of life.  I accept that to date, more than four years post-accident, the plaintiff continues to suffer significantly from the effects of the accident.

[157]     However, the assessment of her loss is complicated by the fact that her evidence is somewhat unreliable.  Further, treatment options have not yet been explored, and the prognosis is uncertain.  There is a substantial risk of pain, suffering, and disability persisting indefinitely.  The preliminary prognosis for complete recovery is negative.  The potential extent of recovery is unclear…

[173]     Having regard to all of the non-exhaustive list of factors commonly considered in relation to assessment of damages for non-pecuniary loss, as set out in Stapley, in the circumstances of this case and bearing in mind the authorities to which I have referred, in my view the appropriate award for non-pecuniary loss is $140,000.


Left Turning Driver Found 100% at Fault For Striking Pedestrian in a Marked Crosswalk

September 5th, 2013

Adding to this site’s archived judgement database addressing collisions involving pedestrians, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a left hand turning vehicle and a pedestrian.

In last week’s case (Han v. Chahal) the Plaintiff was walking in a marked crosswalk southbound across 72nd Avenue in Surrey, BC.  At the same time the Defendant motorist approached from the oncoming direction and attempted to turn left.  The Defendant struck the Plaintiff.   The Defendant conceded fault at trial but argued the Plaintiff was 25% responsible.  Mr. Justice Verhoeven disagreed finding the Defendant was solely to blame for this collision.  In reaching this conclusion the Court provided the following reasons:

[18]         I find that the plaintiff was struck in the crosswalk, just as she entered the second of the two westbound lanes.  She testified that she had proceeded about four steps when she was struck.  The independent witness, Mr. Singh, estimated that she was struck after she had crossed one lane.  Ms. Chahal’s evidence about the accident details was generally vague.  However she was turning left and would presumably have been attempting to enter the left lane of the two westbound lanes, as she was obliged to do pursuant to s. 165 of the Act.  Thus, I conclude that the plaintiff was well into the intersection when she was struck, and some seconds had elapsed since she had left the curb.  I conclude that at the time she left the curb there was absolutely no reason for the plaintiff to be especially concerned for her safety in relation to the defendant’s vehicle.  She was aware of the defendant’s vehicle on the other side of the intersection, but was entitled to assume that the defendant would obey the law and yield the right-of-way to her.

[19]         It is not entirely clear whether the defendant stopped at the light before proceeding into the intersection and striking the plaintiff.  The plaintiff’s evidence was that the defendant’s vehicle was moving when she first saw it, but it stopped.  The defendant’s evidence is more consistent with her simply proceeding into the intersection on a green light, without stopping.  This scenario is also more consistent with the evidence of Mr. Singh, who testified that he was stopped at the red light when the collision occurred, and his evidence that the defendant was going “fast”.  This scenario is also supported by the evidence of the plaintiff that she waited at the curb after activating the pedestrian signal, then proceeded into the crosswalk after the walk signal came on, at which time I infer that the light facing Ms. Chahal would definitely be green, and by my conclusion that there was a lapse of time between when Ms. Han left the curb and when she was struck.  Finally, had it been necessary for the defendant to stop, there is a greater chance that she would have seen the plaintiff, which of course she did not.  I conclude that the defendant entered the intersection on a green light, without stopping, and struck the plaintiff in the crosswalk well after she had left the curb.

[20]         The defendants have not satisfied the onus on them to establish that the plaintiff knew or ought to have known that the defendant driver was not going to grant her the right-of-way, and that, at that point of time, the plaintiff could reasonably have avoided the accident.  There is no basis in the evidence to suggest that after the plaintiff was in the crosswalk she ought to have seen the defendant’s vehicle approaching, realized that she was not seen by its driver, and somehow evaded the collision.  The idea that she could have made eye contact with the driver of the vehicle at some point in time is highly unrealistic in the circumstances, and is no more than speculative. In summary, the plaintiff did not have a duty to positively ascertain the defendant’s intentions nor did she have any means to do so.

[21]         The defendants rely upon Brumm v. Inglis, [1997] B.C.J. No. 1181. However, that case is clearly distinguishable.  There, the plaintiff walked in front of the defendant’s vehicle as it was stopped at an exit from a driveway onto a busy street, waiting for a break in heavy traffic.  The plaintiff could see the driver of the vehicle.  She chose to walk in front of the vehicle, which pulled forward as she did so.  In this context, Mr. Justice Pitfield stated:

She knew of the defendant’s intended actions. She knew or should have known there was danger to her personal safety if she passed in front of the vehicle without first making eye contact with the defendant and the vehicle accelerated suddenly in an attempt to enter the busy flow of traffic.

[22]         The circumstances of the case at bar bear no resemblance to those in Brumm.  More specifically, in the case at bar, it cannot be said that the plaintiff “knew of the defendant’s intended actions” other than perhaps in a general way, nor can it be said that there was something that she realistically could or should have done or refrained from doing in consideration for her own safety.

[23]         I conclude that the defendants have not established that the plaintiff was contributorily negligent.  It follows that the defendants are fully liable for the accident.