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$135,000 Non-Pecuniary Damages Awarded for Multiple Orthopaedic Injuries

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, ICBC Wrist Injury Cases, Uncategorized.


(Illustrations provided courtesy of Artery Studios Ltd.)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.
Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) .   The Defendant was operating a pick-up truck.   The Plaintiff was operating a dirt bike.  The vehicles approached each other from opposite directions.  Both motorists gave evidence that the other was on the wrong side of the road as they approached.  Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other.  The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck.   The Defendant was found 90% at fault for the crash.
The Plaintiff suffered serious injuries including a fractured right ankle and right wrist.  Both of these required surgery.  The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries.  Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff.  In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:

[216]     The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.

[217]     The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.

[218]     He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.

[219]     I assess non-pecuniary damages in the amount of $135,000.00.

Motorist Found 40% At Fault for Striking Jay-Walking Teenager

Written by admin on . Posted in ICBC Liability (fault) Cases.

(Update: The below decision was upheld by the BC Court of Appeal in reasons for judgement dated August 3, 2011)

As I’ve previously written, motorists travelling with the right of way can still be found at fault for a collision in British Columbia.  If you have the right of way but know or ought to know that someone is not yielding you can be found at fault if you fail to take reasonable steps to avoid a collision in these circumstances.  This principle was well demonstrated in reasons for judgement released today by the BC Supreme Court, Kelowna Registry.
In today’s case (Walter v. Plummer) the 16 year old pedestrian Plaintiff was struck by the Defendant’s motorcycle.  The Plaintiff was jaywalking at the time of the collision.  The Plaintiff crossed in front of a stopped tractor trailer and stepped into the Defendant’s lane of travel.  This made it difficult to see the Plaintiff.  The Defendant was not speeding.  Despite this the Defendant was found partially at fault for the crash for failing to take reasonable care in all of the circumstances leading up to the crash.
The Court concluded that the Defendant was careless because she ought to have anticipated jaywalkers at the time and could have taken greater care in operating her motorcycle.  Mr. Justice Barrow provided the following useful summary in explaining why both parties were at fault for this crash:

[25] I am satisfied that Mr. Walter was crossing the street at a casual walking pace, neither particularly fast nor particularly slow. Ms. Plummer was travelling approximately one to two feet to the left of the mid-point of the southbound right turn lane. She saw Mr. Walter for the first time when he emerged from in front of the tractor-trailer truck and walked into her path of travel.

[26]         Based on Dr. Toor’s and Ms. Plummer’s evidence, I am satisfied that the point of impact between Mr. Walter and Ms. Plummer’s motorcycle was two or three feet into the right turn lane and that Mr. Walter was visible to Ms. Plummer for perhaps two more feet as he passed from in front of the tractor-trailer truck to the boundary of the right turn lane…

[41]         There are several significant features of the circumstances facing Ms. Plummer that serve to elevate the degree of care required.

[42]         The first is the reasonably foreseeable risk of jaywalking pedestrians. The defendant was aware that students frequently jaywalked across Rutland Road. Ms. White said that, in her experience, there were many jaywalking students in that area shortly after the schools are dismissed. Further, the risk was not just of any jaywalking pedestrians but of students. The fact that the foreseeable pedestrians would be students is significant because young people may take less care for their own safety than adults.

[43]         A second and related circumstance is that Ms. Plummer knew that the northbound lane was empty and that the vehicles in the left turn and through southbound lanes were stopped. The prospect of students jaywalking in that situation is higher than it would be if there was traffic moving in both directions.

[44]         Finally, and significantly, Ms. Plummer was passing a tractor-trailer unit stopped in the through lane. That truck entirely obstructed her view of the through lane in front of it. If there were pedestrians attempting to cross, it would have been apparent to her that she would not be able to see them.

[45]         All of these features serve elevate the degree of caution necessary to meet the standard of care. To proceed at 40 kilometres per hour passing a stationary truck in an area known to be frequented by jaywalking students is negligent. It is a situation in which a driver ought to have been proceeding in an “alerted” state, to borrow from the categories used in the perception-response studies.

[46]         As to Mr. Walter, he owed a duty to take reasonable care for his own safety. He breached that duty in a number of ways. He crossed other than at a marked crosswalk, and thus contrary to the statutory obligations he was under. Further, just as it should have been apparent to Ms. Plummer that she could not see crossing pedestrians, it ought to have been apparent to Mr. Walter that he could not see oncoming traffic. Finally, and most significantly, unlike Ms. Plummer who was looking where she was going, Mr. Walter did not look into the oncoming lane at all to determine if he could safely cross. His negligence is greater than that of Ms. Plummer. I apportion liability 60 percent to Mr. Walter and 40 percent to Ms. Plummer.

More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 52 Comments on More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims


Further to my two recent articles discussing this topic (these can be found here and here) reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, demonstrating yet again the powerful impact out of court statements can have in an ICBC claim.
In today’s case (Aymont v. Capp) the Plaintiff sustained serious injuries in a 2004 BC motor vehicle collision.  She was driving a Mazda Protege and was exiting a gas station parking lot.  She intended on turning left.  As she entered the roadway the Defendant approached from her left hand side.  A ‘t-bone’ type of collision occurred.
The Plaintiff testified at trial that when the Defendant’s vehicle struck hers she was at a stop and her vehicle had not entered the roadway and was “two feet before the fog line“.  The Defendant disagreed and testified that as he approached the gas station the Plaintiff pulled her vehicle into his lane of travel leaving inadequate time to avoid the collision.
During trial the Plaintiff was confronted with various out of Court statements attributed to her where she discussed the collision.  These included statements given to ICBC, a police officer and a chiropractor.  These previous statements were summarized as follows by Madam Justice Gropper:

[9]             The day following the accident, May 15, 2004, Ms. Aymont went for treatment to her chiropractor’s office, Dr. Susan Holroyd.  She says that she felt dizzy and nauseous, disoriented and in a great deal of pain that morning.

[10]         Dr. Holroyd produced her clinical records, which included a “motor vehicle accident history” form.  Ms. Aymont says that she does not recall the form or filling it out.  She cannot recall if it is her handwriting on the form or not.  The handwritten notations (in italics)  on the form state, in relation to the accident:

State How Accident Happened in your own words.

I had stopped at the entrance of gas st. looked both ways saw no one and began onto road – was hit by a truck travelling very fast.

Where you stopped Yes/No?

No [circled]

Estimate your speed?

10 km/h

Brakes on Yes/No?

No [circled]…

[13]         Cst. Rudy Andreucci telephoned Ms. Aymont the day following the accident and they arranged to meet on Sunday, May 16, 2004 at the RCMP Detachment in Westbank.  Cst. Andreucci testified that the purpose of the meeting was to give Ms. Aymont a traffic violation ticket. Cst. Andreucci served a violation ticket on Ms. Aymont for a breach of s. 176(2) of the Motor Vehicle Act: emerging vehicle: failure to yield.  He noted on the reverse side of the ticket what Ms. Aymont said to him:

04-5-16 V.T issued at office dri Nancy Aymont advised she just didn’t see him.  She knows better-than go on without being sure….

[15]         On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file.  Another adjuster was assigned to Mr. Capp’s file.  Mr. Bonner said that he asked questions and typed the answers into the ICBC note taking system on his computer.  He prepared a sketch based on the information provided to him by Ms. Aymont.  In the statement Mr. Bonner recorded Ms. Aymont stating:

I looked to my right first, and then the left and Bartley Road was vacant, and I thought to myself how often does that happen on a Friday afternoon.  After looking right, then left, I looked right again, and that is the last thing I remember…  If the other driver wasn’t going so fast he probably could have stopped.  My husband drove the road the next day.  At the 50 km/h speed limit, and stopped without skidding before the driveway… I was knocked out and can’t say how far I pulled forward from the exit onto Bartley Road before being hit.

[16]         Ms. Aymont also provided a rough sketch showing where the vehicles were as she approached the exit.

[17]         Ms. Aymont does not recall saying “I can’t say how far I pulled out from the exit onto Bartley before being hit.”

[18]         Mr. Bonner produced a hard copy of the statement for Ms. Aymont to review.  She thought that the second page statement was “all mixed up.”  Ms. Aymont says she made certain corrections to the statement in handwriting.  The last sentence of the statement is “I have nothing to add to this statement, which is true to the best of my memory.”  Ms. Aymont signed the statement….

The Court ultimately rejected the Plaintiff’s evidence and accepted the Defendant’s.  This verdict was largely reached based on the Plaintiff’s prior statements.  Madam Justice Gropper gave the following useful reasons demonstrating the damage that can be done with ‘prior inconsistent statements‘:

[77]         Mr. Capp’s evidence that the Aymont vehicle was moving when he first observed it is consistent with the statements that Ms. Aymont made to her chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete, she says that she was not stopped and was moving at about 10 km/hour.  In her statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto Bartley Road before being hit.  All of these statements are consistent with the circumstances that Mr. Capp describes.

[78]         I find as a fact that Ms. Aymont was not stopped “well before the fog line”.  She was moving from the exit into the southbound lane of travel on Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was not on the brake.  She was not looking in the direction of the oncoming traffic, but was engaged in a conversation with her son Joel who was sitting in the passenger seat, and had turned her face toward him to talk about his drink.

[79]          Ms. Aymont did not yield the right of way to Mr. Capp who was the dominant driver. …

[82] In all of the circumstances, I find the plaintiff is 100% at fault for this accident.

This case is also worth reviewing for the Court’s discussion of the duties of expert witnesses.  Both the Plaintiff and the Defendant retained experts to give accident reconstruction evidence.  The Plaintiff’s expert was soundly criticized for giving evidence as an “advocate” instead of a neutral witness.  The criticism can be found at paragraphs 66-73.

BC Injury Law Podcast – Pre-Existing Conditions and Your Personal Injury Claim

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


This is my latest in a series of podcasts discussing topics of interest in BC personal injury lawsuits.
Today I address pre-existing injuries and how these can be relevant in assessing damages in personal injury claims.
You can listen by clicking on the following link:  bc-injury-law-blog-pre-existing-conditions
If you want to learn more about pre-existing conditions and their treatment in personal injury lawsuits you can click here to access my archived posts on this topic.
UPDATE:  Since initially uploading this podcast the BC Court of Appeal released important reasons addressing injuries with multiple causes.  You can click here to read my article discussing this important case.

A Lesson in Math: Winners and Losers in Personal Injury Lawsuits

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.


When a personal injury claim goes to trial there is a winner and a loser.  Who the winner is, however, is not always apparent by reading the Court judgement.  To know who the winner really is you have to know the behind the scenes formal settlement offers.
Reasons for judgment were released today demonstrating, yet again, the steep costs Plaintiffs can face when on the losing end of a BC personal injury lawsuit.
In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Before trial the Defendants made a formal settlement offer for $20,000.  The Plaintiff rejected this offer and went to trial.  After 10 days of trial a BC Jury awarded $2,200.  The Defendant was awarded ‘costs’ from the date of the formal offer onward.  (You can click here to read my summary of the costs judgement).
On the face of it the Plaintiff clearly lost because she was awarded far less by the Jury than the settlement offer.  But the full extent of the loss is far greater than the difference between $20,000 and $2,200.  The Plaintiff actually ended up owing the Defendant money for this result.  How much money?  Approximately $40,000.
You can read today’s judgment in full to see the types of items a losing litigant can end up owing the winning side to a lawsuit and to see just how quickly a ‘costs’ award can add up.
Today’s case helps illustrate an important point I’ve previously stressed.  Before a case goes to trial it is important to fully consider the potential risks and rewards including the significant toll a costs award can have.  Without knowing and weighing these risks it is very difficult to make an informed choice about whether to settle or proceed to trial.

The Crash Was My Fault, on Second Thought…

Written by admin on . Posted in Uncategorized.


After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

Pain and Suffering Without Objective Signs of Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Wage Loss, Uncategorized. 47 Comments on Pain and Suffering Without Objective Signs of Injury


The easiest personal injury cases to prosecute are those involving objective injuries.  If a person suffers a broken arm or leg in a car crash there is no dispute as to what the injury is or what caused it.  There may be some disputes regarding the consequences of the injuries but generally there is a lot of room for agreement in these types of lawsuits.
On the other end of the spectrum are chronic pain cases.  Many people involved in traumatic events go on to suffer long term chronic pain.  The pain can be invasive and sometimes disabling.  It can interrupt domestic, vocational and recreational activities, it can even negatively impact personal relationships.   Often the source of chronic pain cannot be objectively identified and people suffering from chronic injury face not only the pain but also the stigma that they are somehow exaggerating or even faking their injury.  This skepticism can take a further toll and add to the cycle of chronic pain.
These cases bring challenges in prosecution and create a sharp focus on plaintiff credibility.   Despite their challenges chronic pain disorders can be properly compensated at trial as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Kasidoulis v. Russo) the Plaintiff was involved in a 2005 intersection crash.  Fault was admitted by the driver of the opposing vehicle.  The trial focused on the extent of the Plaintiff’s injuries and their value.
The collision caused several injuries to the Plaintiff which eventually turned into a chronic pain disorder.   As is sometimes the case there was a lack of objective proof of the Plaintiff’s injuries.  Dr. Travlos, the Plaintiff’s treating physiatrist gave the following evidence about the Plaintiff’s injuries:

[21] Dr. Travlos was of the opinion that the complaints reported by Ms. Kasidoulis to Dr. Kneifel, which included headaches, chest pains, neck pains; back pains and emotional difficulties were a direct result of the accident.  He was unable to identify any clinical or objective findings with respect to the back pain but was clearly of the view that Ms. Kasidoulis was genuinely experiencing the pain that she reported.  There does not seem to be any serious dispute between the parties that Ms. Kasidoulis’ pain is genuine and I accept that this is the case.

[22] In his second report Dr. Travlos concluded that Ms. Kasidoulis suffers from chronic pain disorder.  That pain was affecting her daily activities, both social and work related.  He was of the view that Ms. Kasidoulis would benefit from a long-term “longitudinal” course of treatment designed to permit her to manage and cope with her pain.  On the other hand, Dr. Travlos was clearly of the view that there should be no expectation that the pain would resolve and that it was no more probable than not that she will continue to have permanent on-going pain.

[23] In both his reports, and in particular in his March 2010 report, Dr. Travlos focused considerable attention on the necessity of Ms. Kasidoulis undergoing treatment and having access to the resources necessary to reduce the stressors in her life.  As I read Dr. Travlos’ opinion, he was of the view that if Ms. Kasidoulis is given the opportunity to access a reasonable long-term treatment plan and the resources to relieve her household responsibilities, she could expect significant improvement in her ability to function and in her ability to cope with her pain.

[24] Dr. Travlos was of the view that it was unrealistic to expect that Ms. Kasidoulis would ever be able to work full-time, but that it was reasonable to anticipate that she could work between three and four days a week if the therapies that he recommended were pursued and were effective.

Mr. Justice Sewell accepted this evidence and awarded the Plaintiff over $900,000 for her injuries and resulting disability including $90,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In arriving at this verdict the Court made the following comments about causation and compensation for chronic pain cases with lack of objective proof:

[36] As is not uncommon in cases of this sort, the critical issue in this case is the extent to which the injuries Ms. Kasidoulis suffered in the accident are the cause of the difficulties described in the evidence…

37]         This case therefore requires consideration of the law as laid by the Supreme Court of Canada and our Court of Appeal with respect to causation.  The law with respect to causation has been recently addressed and reviewed in Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke, 2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

[38]         These cases establish the proposition that to impose liability on the defendant  I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms but for the accident or, in other words, that the injuries she suffered in the accident were a necessary cause of her post accident symptoms.

[39]         I find that Ms. Kasidoulis suffers from debilitating mid and low-back pain.  This pain and attendant low energy have had a significant impact on her life.  I find that the symptoms being experienced by Ms. Kasidoulis are an indivisible injury which would not have occurred but for the injuries she suffered in the motor vehicle accident.

[40]         I base this conclusion on a comparison of Ms. Kasidoulis’ energy and capabilities before and after the accident.  I accept her evidence that she is suffering debilitating back pain.  I also rely on Dr. Travlos’ conclusion that Ms. Kasidoulis is suffering from chronic pain syndrome.  I can see nothing in the evidence which supports the assertion that Ms. Kasidoulis would be experiencing the pain or the level of disability she currently experiences had she not been injured in the motor vehicle accident.  I therefore conclude that the defendant is fully responsible for the consequences of Ms. Kasidoulis’ present condition.

[41]         I make this finding notwithstanding the lack of objective clinical evidence of serious injury.  I note that neither Ms. Kasidoulis nor Dr. Travlos were cross- examined with respect to the genuineness of Ms. Kasidoulis’ reported symptoms.  In his cross-examination of Dr. Travlos, Mr. Robinson did establish that there was a paucity of objective evidence of injury present.  I note, however, that there is no indication that Ms. Kasidoulis was in any way feigning the symptoms she is experiencing.  Given this fact and the fact that there was ample evidence before me contrasting Ms. Kasidoulis’ personality and abilities before the accident from those she presently possesses and demonstrates, I have no hesitation in concluding that the difficulties that she now faces would not have been experienced but the wrongful conduct of the defendant.

In addition to the above this case is worth reviewing in full for the Court’s discussion of damages for ‘diminished earning capacity‘ at paragraphs 52-65.  The Plaintiff was awarded $550,000 for diminished earning capacity despite being able to continue working in her own occupation because the Court was satisfied that the accident related injuries would prevent the Plaintiff from working on a full time basis as a teacher and instead would be limited to working on a part time on-call basis.

Pedestrian Struck in Cross Walk Found 75% At-Fault for Crossing Against "Don't Walk" Signal

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Pedestrian Struck in Cross Walk Found 7555 At-Fault for Crossing Against "Don't Walk" Signal


Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, awarding a Plaintiff just over $10,000 for injuries and losses sustained in a cross-walk collision.
In today’s case (Furness v. Guest) the Plaintiff pedestrian was struck by the Defendant’s vehicle as he was trying to cross Nicol Street in Nanaimo, BC.  When the Plaintiff stepped off the curb to cross the street the “don’t walk” signal was flashing but he was not aware of this.  The Defendant was stopped in a tractor-trailer waiting for a green signal.  As the Plaintiff walked in front of the Defendant’s vehicle an advance green arrow illuminated permitting the Defendant to start driving.  The Defendant did not see the Plaintiff and struck him with his vehicle.
Both liability (fault) and quantum (value) were at issue in this trial.  Mr. Justice Halfyard held that the Defendant driver was careless for failing “to keep a proper lookout” and for failing to see the Plaintiff who was “there to be seen“.
The Plaintiff acknowledged that he was also partially at fault.  The Court was asked to determine how much each party was to blame.  Mr. Justice Halfyard found that the Plaintiff was more at fault and apportioned his blame at 75%.  In reaching this distribution of fault the Court reasoned as follows:

[58]         I find that the plaintiff’s degree of fault for the accident is considerably greater than the degree of fault of Mr. Guest. There is no legal formula for determining how fault for an accident should be divided. Counsel for the plaintiff referred me to a number of authorities in support of his submission that Mr. Guest should bear the far greater fault for the accident. Of course, the evidence and the findings of fact are different in all cases. As a consequence, previously-decided cases are of limited assistance at best. I found the cases of Funk v. Carter 2004 BCSC 866 (Williamson J.) and Morrison v. Pankratz 1991 CarswellBC 1765 (Shaw J.) to be of some assistance, particularly in the discussions of the general principles.

[59]         In my opinion, liability should be apportioned as to 25% against Mr. Guest, and 75% as against Mr. Furness, and I so order.

The Court then dealt with the value (quantum) of the Plaintiff’s claim.  The Plaintiff’s injuries and their course of recovery were summarized as follows:

[60]         Most of the injuries sustained by the plaintiff are not in dispute and I find them to be the following:

a)    undisplaced fracture of the posterior aspect of the medial femoral condyle of the right knee;

b)    tiny fracture of the very lateral aspect of the lateral tibial plateau, which was undisplaced;

c)     injury to the soft tissues in and around the right knee joint including a tear of the posterior horn of the medial meniscus;

d)    other minor contusions and abrasions.

[61]         The plaintiff complained of ongoing pain in his right ankle, which he attributes to the accident of February 13, 2007. ..

[81] I find that, by the time of trial, the plaintiff had substantially recovered from the injuries he sustained in the accident of February 13, 2007. There is no medical opinion evidence which causally connects the plaintiff’s present complaints to his injuries of February 13, 2007. Nor is there any evidence of objective medical findings that confirm the plaintiff’s ongoing complaints of pain in his knee. In these circumstances, I am not satisfied that the necessary causal connection between the accident and the plaintiff’s present complaints of physical pain has been proved. However, I do accept that the plaintiff is still experiencing some intermittent psychological effects from the accident, in the form of nightmares and fear of crossing the street. I find that these psychological effects are diminishing, and should not persist for much longer. The evidence does not establish a real and substantial possibility that these psychological symptoms will persist well into the future.

Mr. Justice Halfyard valued the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000.  The Court then reduced this award by 75% to take into account the Plaintiff’s own blame for his injuries.

Vancouver's News 1130 Picks Up on Story About Potential Lawsuits for Charter Breaches

Written by admin on . Posted in BC Injury Claims Media Archives, Damages for Charter Breaches, Uncategorized.


Further to my article published last week, the Supreme Court of Canada will soon decide whether damages can be awarded in lawsuits against the Government for breach of rights under the Canadian Charter of Rights and Freedoms.
Shane Bigham of Vancouver’s News 1130 picked up on the story and ran a piece last week bringing further attention to this matter.  Shane was kind enough to provide me with a clip of this story and you can listen to it by clicking on the following link( bc-injury-law-civil-lawsuits-against-police-for-charter-breaches.)
The bottom line is that actions which violate individuals rights under the Canadian Charter of Rights and Freedoms may bring rise to lawsuits for civil damages.  Once the Supreme Court of Canada gives their decision in the Vancouver v. Ward appeal there will be welcome clarity in this area of the law.
While I don’t necessarily think that the floodgates will open if these types of lawsuits get the green light from the Suprene Court of Canada public institutions (police departments in particular) need to rethink the potential financial exposure their actions bring when creating policies that may violate rights under the Charter.
Mass searches at public events (such as alcohol searches at Canada Day festivities and the Celebration of Light) could give rise to numerous lawsuits.   Before deciding on the protocol that will be employed by police at these types of public events the RCMP and municipal police forces ought not overlook the potential implications of civil damages for Charter breaches.

Settlement Approved in Woodlands Abuse Class Action Lawsuit

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

The Woodlands School was a facility operated by the Province of British Columbia until 1996.  It housed children and adults with mental and physical disabilities.
Two well documented investigative reports highlighted a sad history which involved systemic physical, sexual and psychological abuse perpetrated against these vulnerable residents.  The reported abuse included “hitting, kicking, smacking, slapping, striking, restraining, isolating, grabbing by the hair or limbs, dragging, pushing onto table, kicking and shoving, very cold showers, very hot baths resulting in burns to the skin, verbal abuse including swearing, bullying and belittling, inappropriate conduct such as extended isolation, wearing shackles and belt-leash with documented evidence of injuries including bruising, scratches, broken limbs, black eyes and swollen face.”
A class action lawsuit was launched in 2002 seeking compensation for the Victims of the Woodlands School.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, (Richard v. British Columbia) approving a settlement for the survivors.
The settlement allows each survivor who was abused after August 1, 1974 to receive between $3,000 and $150,000 in compensation.  (the reason for the August 1974 cut off is because people abused before that time don’t have the right to sue the Province of British Columbia as a result of a law known as The Crown Proceeding Act).  In all this is a class of 1,168 individuals.
The approved settlement does not award each member a specific dollar figure, rather it approves a system in which each class member can efficiently seek access to compensation based on a negotiated system which focuses on the nature of abuse they suffered.
This settlement is an example of a creative resolution to a series of very difficult claims many of which may not have succeeded at individual trials due to technical issues of evidence and limitation defenses.  This judgement is worth reviewing in full for anyone involved in or interested in cases dealing with damages suffered through historic acts of institutional physical and sexual abuse.
Mr. Justice Bauman concludes his reasons by congratulating the parties on reaching compromise in the claim which is a sentiment well worth repeating.