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 ‘Mr. Justice Kelleher’

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.


“Textbook Example of Failure to Mitigate” Leads to Over $100,000 of Stripped Damages

January 10th, 2014

It pays to take reasonable efforts to get better.  Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.

In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future.  The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow.  The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments.  In reaching this conclusion Mr. Justice Kelleher provided the following reasons:

[55]         The facts of this case represent a textbook example of a failure to mitigate.  There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer.  Their recommendations are remarkably similar.  Mr. Maltese has chosen to ignore them…

[59]         I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.

[60]         Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. 

[61]         On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate…

[77]         In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program.  The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer.

[78]         But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages.  I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future.  After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning.  He has not done so.  I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.


Ovetaking Vehicle Striking Left Hand Turning Car Fully At Fault for Collision

September 30th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing fault for a collision involving a vehicle overtaking another.

In last week’s case (Shallow v. Dyksterhuis)  the Defendant was driving behind the Plaintiff when the Plaintiff vehicle slowed near an intersection.  The Defendant attempted to pass the vehicle by overtaking it on the oncoming lanes.  At the same the time the Plaintiff attempted a left hand turn and a collision occurred. In finding the Defendant fully liable for the collision Mr. Justice Kelleher provided the following reasons:

[3]             The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C.  Ms. Orcutt was driving south on the Alaska Highway, Highway 97.  She intended to turn left onto an access road, two kilometers south of the junction with Highway 29. 

[4]             Highway 97 has one southbound lane in this area.  However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection.  The intersection is not controlled by a traffic light.  The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane. 

[5]             The accident occurred at 8:30 a.m.  There was daylight.  The roads were covered with snow and it was continuing to snow.  Visibility was satisfactory.  Ms. Orcutt testified that she had her left turn signal on.  As she commenced her turn, the defendant’s vehicle struck her vehicle as he was attempting to overtake her by passing her on the left.

[6]             The defendant testified that he was driving south in a loaded logging truck.  He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John.  This was his second load of the day. 

[7]             Mr. Dyksterhuis testified that he was travelling in the one southbound lane.  He noticed the plaintiff’s car driving south in front of him.  He saw the vehicle slow down and saw that the brake lights were coming on and off.  Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there.  He presumed, then, that the plaintiff was either turning right or stopping on the highway. 

[8]             The defendant decided it was safe to pull out and pass her on the left.  As he came up on her left, she began her left turn.  His front bumper struck her vehicle. ..

25]         There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone.  There was a solid double yellow line on the highway, but it was covered with snow. 

[26]         Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt.  First, he was in a no passing zone.  Second, he wrongly assumed that she was not able to turn left at that place.  Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her. 

[27]         The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)).  The defendant did not dispute the ticket.  Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).

[28]         The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame.  This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn. 

[29]         I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care.  She was making a lawful left turn.  She was in an area where passing was not permitted.  She was in the left turn lane.  The defendant did not sound his horn to warn her. 

[30]         Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault.


$85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

April 3rd, 2013

It is rare to find caselaw dealing with damages for a femur fracture alone as the forces required to break the body’s biggest bone usually also result in other complex injuries.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with such an injury without significant complication from other factors.

In this week’s case (Gravelle v. Seargeant) the Plaintiff pedestrian was struck by the Defendant’s vehicle while he was walking on the shoulder of a road.  The impact threw the plaintiff between and 30 feet.  He suffered a fractured right femur which required surgical interventions.  Despite a relatively good recovery he was expected to have some permanent level of restriction due to his injury.  In assessing non-pecuniary damages at $85,000 Mr. Justice Kelleher provided the following reasons:

[50]         The following is the application of these factors to the plaintiff:

(a)      Age of the plaintiff: 
Mr. Gravelle was 16 when the accident happened.  The evidence establishes that he will likely suffer some measure of pain for the rest of his life.

(b)      Nature of the injury:
Mr. Gravelle suffered a fractured right femur that required an open reduction and insertion of an intramedullary nail and locking screws.  He also suffered injuries to his low back, right groin and right knee, which remain a cause of pain.

(c)      Severity and duration of pain:
He was in severe pain for a short period of time.  He was required to take pain medication for 4 – 6 months.  Four and a half years after the accident he continues to suffer pain.

(d)      Disability:
The plaintiff was totally disabled for some six months, and continues to have some measure of disability.

(e)      Emotional suffering:
The plaintiff’s mother testified that the plaintiff was isolated and less confident following the first collision.  He did not seek counselling for this.

(f)       Loss and impairment of life:
Mr. Gravelle’s life was interrupted and altered by the first collision.  He missed part of Grade 10.  His mobility was significantly restricted during the summer.  He has permanent injuries and has some impairment of his ability to perform physical labour and enjoy his former physical pursuits.

(g)      Impairment of family, marital and social relationships:
Mr. Gravelle does not enjoy spending a lot of time with friends.  He was somewhat like this before the accident as well.

(h)      Impairment of physical and mental abilities:
He has a permanent impairment of his physical capabilities.  There is no impairment of his mental abilities.

(i)       Loss of Lifestyle:
Mr. Gravelle was unable to engage in snowboarding, an important part of his life, for some time.  He has been able to return to it, but pain prevents him from snowboarding in the same manner as before.

(j)       Stoicism:
Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees that the plaintiff should not be penalized for this…

53]         Having considered the plaintiff’s injuries and the factors listed above, in light of the case law, I assess non-pecuniary damages at $85,000.


$4,000 Non-Pecuniary Assessment for 4 month long soft tissue injuries

October 9th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries caused by a Low Velocity Impact.

In last week’s case (Naidu v. Gill) the Plaintiff was involved in a 2008 rear-end collision.  The crash resulted in little vehicle damage.  The Plaintiff alleged he had injuries caused by the crash which were on-going at the time of trial.  The court found that the plaintiff was an “unreliable historian” and did not accept that the Plaintiff’s ongoing complaints were related to the crash.  The Court did, however, accept that the crash caused a modest soft tissue injury which resolved 4 months following the collision.  In doing so Mr. Justice Kelleher provided the following reasons:

[36]         Mr. Naidu suffered soft tissue injuries in the 2008 motor vehicle accident.  The injuries were not severe.  It is significant that no prescription medication was suggested or prescribed; Mr. Naidu has been able to work throughout the period since then.  No report of an injury was made to ICBC for over a year.  Mr. Naidu was able to travel to Asia on three occasions in 2010.  Mr. Naidu made three visits to a physician in early 2009 and made no mention of pain symptoms from the accident.  Finally, while the extent of the damage to the vehicle is not determinative for the reasons I just explained, it is not irrelevant that the damage to the vehicle was minor.  

[37]         The evidence does not establish causation for the symptoms persisting past approximately January 2009.  It is at least equally likely that the symptoms which resulted in his complaints in April 2009 and September 2009 were caused by physically demanding work as a security guard…

[39]         I conclude that the symptoms from the September 2008 accident persisted into early 2009.  The plaintiff has not discharged the onus of proving that his symptoms since that time were caused by the accident.  I have reviewed a number of authorities including Bagasbas v. Atwal, 2009 BCSC 512; Gradek v. Daimler Chrysler Financial Services Canada Inc., 2009 BCSC 1572; Ostovic v. Foggin, 2009 BCSC 58; and Ceraldi v. Duthie, 2008 BCSC 1812.

[40]         An award of $4,000 is appropriate.


Examination For Discovery Evidence and Proper Procedure at Summary Trials

September 10th, 2012

Update July 19, 2013 - the below decision was upheld in reasons for judgement released today by the BC Court of Appeal

__________________________________________________________________

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the introduction of examination for discovery evidence at a summary trial.

In the recent case (Mawani v. Pitcairn) the Plaintiff was injured in a pedestrian/vehicle collision.  Fault was disputed and following a summary trial Mr. Justice Kelleher found both parties equally to blame.

In the course of the summary trial the Plaintiff tendered an affidavit which attached the transcript from the Defendant’s examination for discovery as an exhibit.   The Plaintiff’s application response clearly indicated that the Plaintiff was only relying on specific questions and answers from the examination.  Despite this the Defendant argued that the entire transcript was put in evidence by the Plaintiff therefore the Plaintiff was bound by the unhelpful answers.

Mr. Justice Kelleher rejected this argument finding that in circumstances where the Plaintiff clearly identifies the specific questions he is relying on such a harsh result is not justified.  The Court provided the following reasons:

[23]At the hearing before me, the defendant argued that the entire examination for discovery of the defendant is before me.  That is because of para. 46 of the earlier ruling:

[46]      … Neither the deposition evidence nor Mr. Pitcairn’s examination for discovery are tendered as part of Mr. Pitcairn’s case.  If they are before me at all, they are before me as part of Mr. Mawani’s case.  His evidence, as matters currently stand, includes both the entirety of the examination for discovery evidence, and an affidavit from Ms. Forrest disclosing those portions of the examination for discovery he intends to rely on.  It also includes the entirety of the deposition evidence, but as I already noted, the rules do not provide for the admissibility of the deposition on summary trial unless arguably the court makes an order for its admission.  As I have also noted, there has been no application yet made by any party for that deposition evidence to be received in whole or in part.

[24]I disagree with the defendant that the entire examination for discovery is before me.  Mr. Justice Harris went on to direct, at para. 69, that plaintiff’s counsel file an application response which sets out the material on which he relies as part of the evidence in his case.  Mr. Gourlay did that on February 29, 2012.

[25]Mr. Arvisais argues that the entire transcript is in evidence.  In a conventional trial, the transcript would not be an exhibit.

[26]The application response filed February 29, 2012, makes it clear that the plaintiff is relying on certain questions and answers only.  Despite Mr. Justice Harris’s statement at para. 46 of his reasons, which were published before the application response was filed, the plaintiff does now make clear what questions and answers are relied upon.  The attachment of the entire transcript of the examination for discovery is consistent with the “proper procedure” outlined by Burnyeat J. in Newton v. Newton, 2002 BCSC 14.


Third Party's Can Be Exposed To "Loser Pays" Costs Consequences

October 20th, 2011

(Update February 9, 2012the below decision is under appeal with the BCCA granting leave to appeal on February 9, 2012)

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Third Party’s are not immune from BC’s ‘loser pays’ system.

This week’s case (Danicek v. Alexander Holburn Beaudin & Lang) involved a highly publicized lawsuit where the Plaintiff lawyer was awarded damages after being injured in a dance floor incident.  My previous posts can be accessed here for the full background.  This week the Court finalized some of the costs consequences following the trial.  In doing so Mr. Justice Kelleher provided the following comments adopting an Alberta judgement confirming that there is no reason why Third Party’s can’t be exposed to costs consequences following trial:

[15] The first issue is whether Lombard should be held liable to the plaintiff Ms. Danicek for the costs of the trial.

[16] There is no serious dispute that although Lombard was not a defendant but a third party, it may be liable in costs. It was put this way by Egbert J. in Sunburst Coaches Ltd v. Romanchuck;Ocean Accident and Guarantee Corporation Limited (Third Party) (1953) 9 W.W.R. (N.S.) 385 (Alta. S.C.) at 392, para. 19:

The third party, on its own application became a party to and actively defended the action, and by so doing made itself subject to the jurisdiction of this court as to costs. I see no reason why the plaintiff should not have judgment against the third party as well as against the defendants, for its costs computed in the manner aforesaid.

[17] Because of the other settlements in this action Lombard found itself the only party left to defend the claim.  Although Mr. Poole had admitted liability, Lombard contested both the liability of Mr. Poole and damages.  It was entitled to do so but faces the possibility of an award of costs either in its favour or against it, depending on the outcome of the lawsuit…

[23] The purpose of an award of costs is to indemnify successful litigants; deter frivolous proceedings and defences; encourage parties to deliver reasonable offers to settle; and discourage improper or unnecessary steps in litigation:  see Skidmore v. Blackmore (1995), 122 D.L.R (4th) 330, at para. 37.

[24] My conclusion is that the plaintiff is entitled to her costs in respect to Phase 1 of the trial against Lombard.  It was Lombard that decided to contest liability and quantum.  Ms. Danicek’s position was upheld on each of these issues.  Quantum far exceeded the settlements she had reached with Mr. Poole, Alexander Holburn and the other third parties.

[25] Lombard was not, ultimately, liable for the judgment against Mr. Poole.  This was because of the conclusion reached in the second phase of the trial that the Lombard policy did not provide coverage.  But that was not the issue in Phase 1 of the trial.  (There was evidence relevant to the coverage issue adduced at trial.  That is because witnesses were called at the first phase who had evidence to give in respect to the second phase.)  The issues decided in Phase 1 were liability of Mr. Poole and quantum of damages.

[26] In my view having in mind the principle of an award of costs, costs should be awarded against Lombard in respect of Phase 1 from the time that it filed a statement of defence.  The plaintiff was substantially successful on the issues involving Lombard in that part of the trial.


ICBC Denied Double Costs Despite Significantly Besting Formal Settlement Offer

April 14th, 2011

(Update February 9, 2012 – the below decision is under appeal with the BCCA granting leave to appeal on February 9, 2012)

Last year highly publicized reasons for judgement were released assessing damages at $5.9 million for a lawyer who sustained a traumatic brain injury during a dance floor incident.   Despite the headline making award, only a fraction of the damages were recoverable due to the limits of the responsible insurer.  In what may be the final chapter of this long legal saga, reasons for judgement were released addressing costs.

As was widely reported, the Plaintiff was injured in a dance floor incident and successfully sued another lawyer that knocked her down causing her brain injury.  The reason why ICBC played a role is because the Plaintiff was involved in a subsequent car crash.  She sued the motorist for damages claiming the crash aggravated her brain injury.  Prior to trial ICBC made a formal settlement offer of $500,000.  The Plaintiff countered at $1.9 million.   Ultimately her allegations that the crash aggravated the brain injury were rejected and damages of just over $10,000 were awarded for the car crash.

ICBC asked the the Court to award them double costs under Rule 9-1.  Despite ICBC’s success in relation to their formal settlement offer and despite concerns about aspects of the Plaintiff’s trial testimony, Mr. Justice Kelleher declined to award ICBC double costs.  In today’s case (Danicek v. Li) the Court provided the following reasons:

[38] Considering all the factors, I conclude that there should be no award of double costs.  The plaintiff suffered, I found, career ending injuries.  I cannot say it was unreasonable to decline the offer.  Although I considered Ms. Danicek to be less than candid, I conclude on a consideration of all factors that no double costs award should be made.

Despite this, the Court did go on to award Costs and Disbursements at Scale C (the highest scale).  In reaching this decision Mr. Justice Kelleher provided the following Reasons:

[40] Counsel agree that the relevant factors for determining whether Scale C costs should be awarded include:

–       the length of trial;

–       the complexity of issues involved;

–       the number and the complexity of pre-trial applications;

–       whether the action was hard fought with little conceded;

–       the number and length of examinations for discovery;

–       the number and complexity of expert reports; and

–       the extent of the effort required in the collection and proof of facts.

See: Mort v. Saanich School Board, 2001 BCSC 1473 at para. 6; 566935 B.C. Ltd. v. Allianz Insurance Co. of Canada, 2005 BCSC 3032 at para. 7.

[41] Based on these criteria, there will be an award at Scale C.

[42] The trial was 29 days.  A central issue was whether the plaintiff’s symptoms would have resolved but for the motor vehicle accident.  There were reports and/or testimony from physiatrists, neurologists, psychiatrists and others.  The plaintiff alone relied on 21 expert reports.

[43] The action was complex. There were some seven parties involved. The plaintiff was examined for discovery on eleven occasions over several years. There were a number of applications both prior to and during the trial.  This case bears similarity to Graham v. Marek, 2002 BCSC 214; Ramcharitar v. Gill, 2007 BCSC 1268; and Mosher v. Sedens Estate, [1998] B.C.J. No. 2822.

[44] I have considered Hussack v. School District No. 33 (Chilliwack), 2010 BCSC 304, and Radke, when costs at Scale B were awarded.

[45] Hussack was a 23-day trial.  However, the liability issue was not complex; there were only four pre-trial applications and none was complicated.  The examination for discovery of the plaintiff was one full day and three half days.  There was one plaintiff and one defendant.

[46] In Radke, Madam Justice Boyd cited these circumstances in concluding that the matter was not a matter of “more than ordinary difficulty” (at para. 26):

[26]      The one circumstance which I agree made this case somewhat unusual was the fact that the defendant apparently took a very heavy interest in this case, to the point of following her neighbour (the plaintiff) about and gathering evidence to challenge her claims of disability.  In response the plaintiff’s counsel apparently conducted an in- depth investigation of the defendant, including her history of unusual behaviour in the neighbourhood, so as to challenge her own credibility and reliability.  The trial was settled before that evidence was heard.

[47] The complexity of this matter is well beyond what was before the Court in Hussack and Radke.



Danicek v. AHBL: Looking Beyond the Headlines

January 24th, 2011

Last year reasons for judgement were released by the BC Supreme Court, Vancouver Registry, assessing damages for personal injuries at over $5.9 million dollars.

The case received a lot of publicity.  The size of the assessment and the facts underlying the case  (one lawyer fell on another lawyer while dancing at a nightclub) were some of the reasons why this case received so much press.

However, looking behind the headlines gives a better (and less sensational) account of a story of compensation for longstanding and debilitating injury.

The Plaintiff’s damage assessment at a quick glance appears high, however, she suffered a traumatic brain injury as a result of the incident.  The Court found that she would never work competitively as a lawyer again.  The lion’s share of the damage assessment was intended to compensate the young lawyer for a lifetime of lost earnings.

Of greater significance was the fact that the Plaintiff never received anywhere near the assessed $5.9 million in damages from the personal Defendant.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Danicek v. Alexander Holburn Beaduin & Lang) revealing the rest of the story.

As the high profile case was being tried an underlying battle was being fought between the Plaintiff, Defendant and various insurance companies about coverage.

The Defendant, Jeremy Martin Poole, agreed to pay the Plaintiff just over $1,000,000 of the damages.  This money was obtained from an insurance company that agreed that coverage was in place based on the allegations.  A seperte insurer, whose policy provided $5,000,000 in coverage, denied payment arguing that this type of lawsuit fell outside the scope of their coverage.  This issue went to trial and in today’s reasons Mr. Justice Kelleher sided with Lombard Insurance finding that they did not have to pay any part of the damage assessment to the Plaintiff.

What’s left when all the dust settles is something far less sensational than what early headlines would lead people to believe.  Ultimately a brain injured plaintiff has received less than complete compensation for the long-standing consequences of traumatic brain injury.


$5.9 Million Damage Assessment To Lawyer For Mild Traumatic Brain Injury

August 10th, 2010

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of just over $5.9 million for injuries and losses sustained in a Dance Floor injury.

In today’s case (Danicek v. Alexander Holburn Beaudin & Lang) the Plaintiff lawyer was out at a lawfirm function in 2001.  After dinner some members of the Plaintiff’s firm went dancing at a nightclub in downtown Vancouver.  During the evening a fellow lawyer fell backwards while dancing.  During his fall he struck the Plaintiff causing her to fall as well.  The Plaintiff hit her head on the ground with enough force to knock her unconscious.  Liability was in issue however Mr. Justice Kelleher found the Defendant was impaired when he fell and that he was fully responsible for the incident.

The Plaintiff suffered a mild traumatic brain injury (MTBI) the consequences of which were expected to never fully recover.  The court found that the Plaintiff would likely never work competitively as a lawyer again and awarded over $5 million for her diminished earning capacity.  Mr. Justice Kellehar also awarded the Plaintiff $185,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court made the following findings about the severity and extent of the Plaintiff’s brain injury:

227]     I find Ms. Danicek suffered a mild, traumatic brain injury in the April 6, 2001 accident. It has had a profound effect on her life. She was completely disabled from work until December 2001. As Dr. Anderson notes in his report dated January 26, 2007, the mild traumatic brain injury has resulted in ongoing post-concussive symptoms, which include physical, cognitive, and emotional difficulties.

[228]     Her headache pain has persisted and persists today, some nine years after the accident. The post-traumatic headaches have resulted in the plaintiff developing chronic pain disorder. Dr. Anderson notes that chronic pain disorder “causes significant distress or impairment in social, occupational, or other important areas of functioning.” …

[229] The medical evidence suggests that the plaintiff is not likely to completely or even substantially recover from these symptoms….

230]     Dr. Robinson noted that persons who suffer from severe headache disorders similar to the plaintiff’s condition are not likely to realize substantial improvements with the available treatments.

[231]     Dr. Anderson does not consider it likely that the plaintiff’s chronic pain disorder will meaningfully improve…

[232] In addition to the headaches and pain disorder, I accept that the dance accident caused some measure of cognitive impairment. Ms. Danicek felt that before the accident she was quick to understand new concepts. Today, she feels that, in her words, everyone gets it except her….

254]     The dance accident has impacted the plaintiff’s life profoundly. She has lost much. She has had and continues to have headaches of varying severity and duration. The injury has affected her physical and mental abilities and had a significant impact on her relationship with Mr. Schober.

[255]     The plaintiff has experienced a loss of enjoyment of life, and is unable to engage in many recreational activities. Her lifestyle has drastically changed since the dance accident.

[256]     An example of the effect of the dance accident on the plaintiff’s life is found in the evidence of her friend, Kristen Schneider. Prior to the accident, Ms. Schneider described the plaintiff as having “the most energy I think out of anybody I know”. At trial, Ms. Schneider testified that after the dance accident, Ms. Danicek was unable to consistently make their customary lunch dates; when she did, they had to find restaurants that were quiet to avoid exacerbating her headaches.

[257]     Additionally, she and the plaintiff no longer regularly go for runs, rollerblade, or hike the Grouse Grind, as was their habit prior to the dance accident.

[258]     Ms. Danicek is no longer able to pursue her career as a corporate solicitor working on “big deals”, a position she worked hard to obtain. The plaintiff enjoyed this work and her career was a source of pride for her. I accept this loss has negatively affected her feelings of self-worth and emotional well-being. In Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, Dickson C.J. (in dissent) stated at 368:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

[259]     It is clear the plaintiff continues to suffer from her injuries, and her problems are likely to continue in the future without substantial improvement or resolution. Her prognosis for recovery or diminishment of her chronic headaches and pain is not good.

[260]     While individual judgments turn very much on their particular facts, two decisions which have influenced me are Reilly v. Lynn, 2000 BCSC 360, varied on other grounds, 2003 BCCA 49, leave to appeal ref’d [2003] S.C.C.A. No. 221, and Adamson v. Charity, 2007 BCSC 671.

[261]     In the circumstances, an award of $185,000 is appropriate.