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 ‘Madam Justice Matthews’

Martial Arts Student Waiver Held Not To Extend to Injuries Sustained in a Tournament

February 27th, 2019

Post originally published here on my other legal blog combatsportslaw.com 

__________________________________________________

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.

In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy.  The Plaintiff participated in a tournament where he sustained injury.  He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.

As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“.  The Defendant argued that this waiver should be upheld and the lawsuit dismissed.  The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“.  Using this test the court found the waiver for injuries in classes could not extent to a tournament.  In reaching this conclusion Madam Justice Matthews provided the following reasons:

[24]         Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.

[25]         I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.

[26]         In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.

[27]         Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.

[28]         I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.

[29]         The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.


$70,000 Non-Pecuniary Assessment After Sheriffs Negligently “Takedown” Courthouse Visitor

October 25th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, ordering Sheriff’s to pay just under $70,000 in total damages to a plaintiff who was injured when they were forcibly removing him from a BC courthouse.

In the recent case (Sweeney v. British Columbia) the Plaintiff was attending the Victoria Registry of the BC Supreme Court to file some papers pertaining to a Residential Tenancy matter.  Sheriff’s approached him and asked to search his backpack.  After some misunderstanding about his consent to do so he was forcibly removed.  In the process the Plaintiff was actively resisting in that “he was trying to pull his arm away from Acting Sergeant Kain’s hold on it because of the pain in his arm” and displayed “a negative attitude towards the authority of the sheriffs“.

A sheriff executed a takedown of the Plaintiff and the court found they were negligent in doing so.  The takedown caused various injuries including “a laceration to his forehead, a concussion, exacerbation of pre-existing injuries to his right arm and shoulder and a rotator cuff tear to his right shoulder.“.   The court assessed non-pecuniary damages for these injuries at $70,000 but reduced the award by 5% for contributory negligence on the part of the plaintiff.

In explaining why the sheriffs were negligent Madam Justice Matthews provided the following reasons:

[90]         I find that both sheriffs believed that Mr. Sweeney was trying to break free. I find that they were in a dangerous situation because they were at the top of two sets of cement stairs separated by a set of glass doors. While they both testify that they never lost control of Mr. Sweeney, they both testified that they were concerned that they would lose control and that would be dangerous to them. Acting Sergeant Kain was also concerned about the woman coming up the stairs.

[91]         I am mindful to not second guess the sheriffs given the dangerous situation they were in. However, I am of the view that they created this dangerous situation by marching towards the stairs notwithstanding the hazards the stairs presented and that Mr. Sweeney was struggling from the outset.

[92]         Both sheriffs decided to cease the escort and to execute maneuvers to maintain control over Mr. Sweeney. They decided this independently and made different decision about what to do to manage the situation.

[93]         The Sheriff Policy Manual requires the sheriffs to use the minimum amount of force necessary to gain control of a subject. I accept the opinion of Mr. Summerville, supported by the evidence of Acting Sergeant Kain, that putting Mr. Sweeney against the wall was far safer than a takedown in the circumstances given the stairs and a very hard ground surface onto which Mr. Sweeney was forcibly put down. A takedown was not, as the Sheriff Policy Manual requires, the minimum force necessary in the circumstances. I conclude that a takedown was not within the reasonable range of options available.

[94]         I find that the sheriffs both breached the standard of care in taking physical control of Mr. Sweeney at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. I conclude that they sheriffs breached the standard of care by failing to communicate after each of them decided to change course their course of action. I find that Deputy Sheriff Bergen breached the standard of care in executing a takedown.

[95]         The defendants do not dispute that the takedown caused injury to Mr. Sweeney. Accordingly, the plaintiff has established negligence against the sheriffs.


$110,000 Non-Pecuniary Assessment For Chronic Pain Coupled With Psychological Injury

September 26th, 2018

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

In today’s case (Evans v. Keill) the Plaintiff was involved in a 2013 rear end collision that the Defendants admitted fault for.  The crash caused a variety of soft tissue injuries which developed into chronic pain coupled with psychological injury.  The consequences impacted her vocationally with a poor prognosis for recovery.  In assessing non-pecuniary damages at $110,000 Madam Justice Matthews provided the following reasons:

[166]     I have concluded that as a result of the accident, Ms. Evans has suffered pain and a loss of enjoyment of life, which will continue into the foreseeable future and from which she is unlikely to ever fully recover.

[167]     As a result of the injuries she sustained in the accident, Ms. Evans suffered from soft tissue injuries to her mid-back, upper back, neck and shoulder. She now has chronic pain in her neck and upper back. The pain is exacerbated by lifting and many different postures, including sitting, standing, certain neck angles and some yoga postures. It is exacerbated by physical activities where her neck or back bears weight, or involves lifting or working with her arms above a certain height. She experiences headaches and migraines. Over the course of two years after the accident the pain has gradually improved by about 60% but has plateaued at its present level. It is permanent and not likely to improve. She has been prescribed analgesics and has taken over-the-counter medications to cope with her pain.

[168]     Before the accident, Ms. Evans’ mood was good and she enjoyed being physically active and social. She hiked several times a week, sometimes with friends, and regularly did yoga. She had a career that she enjoyed and was justifiably proud of given her eligibility for further promotion and that she achieved it without graduating high school. Her injuries rendered her unable to do her job.

[169]     Due to the accident injuries, Ms. Evans suffered two major depressive episodes and somatic symptom disorder. She withdrew socially from her friends. She attempted suicide twice. She drank excessively.

[170]     Overall, Ms. Evans’ life is very different from what she enjoyed prior to the accident. However, after a significant and challenging struggle, she has reworked her life into a place where she is happy.

[171]     The most significant of the Stapley factors in this case are Ms. Evans’ age; the severity and duration of the pain; the impairment of her physical abilities; her associated loss of lifestyle; and the impairment of her relationships. Ms. Evans is relatively young. She was 34 years old at the time of the accident and she was 39 years old at trial. She faces the prospect of a lifetime of chronic pain and associated functional limitations. One of the most significant impacts of her injuries has been the impact on her ability to do her job as a produce manager, which she enjoyed and which was a source of pride…

[181]     In summary, some of the cases cited by Ms. Evans involve other injuries, such as thoracic outlet syndrome, disc herniation or facet joint arthroplasty, on top of chronic myofascial pain and psychological injuries. Most of the defendants’ cases do not include cases where a psychological condition has been diagnosed and/or the chronic pain is not as functionally disabling as that experienced by Ms. Evans. The cases which are most similar are Stapley and Montgomery.

[182]     Having considered the Stapley factors and all the above authorities, I assess non-pecuniary damages at $110,000.