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Bus Driver Found 50% Responsible For Collision With Cyclist Riding in Crosswalk

Written by admin on . Posted in ICBC Liability (fault) Cases. 56 Comments on Bus Driver Found 5056 Responsible For Collision With Cyclist Riding in Crosswalk


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a school bus and a cyclist.
In today’s case (Torok v. Sekhon) the Plaintiff was travelling southbound on a sidewalk in Surrey, BC.  He was travelling on the left side of the street.    At the same time the Defendant was operating a school bus and driving in the opposite direction of travel.  As the Defendant approached an intersection he put on his right turn signal and proceeded to make a right turn.  The Plaintiff, who was travelling down hill, did not yield and entered the roadway from the sidewalk.  A collision occurred.
Mr. Justice Smith was asked to determine the issue of fault.  The Court found that both parties were equally at fault for the collision.  In reaching this decision Mr. Justice Smith reasoned as follows:

[18]         The essential fact in this case is that Mr. Sekhon did see Mr. Torok and Mr. Kolba approaching the intersection at which he planned to turn. Moreover, he was driving in an area and at a time of day when the presence of children was to be expected. The duty on a driver in such a situation was recently summarized by Greyell J. in Chen v. Beltran, 2010 BCSC 302 at para. 27:

[27]      The general principle underlying any determination of fault or blameworthiness rests on a finding whether the defendant could reasonably foresee that his or her conduct would cause or contribute to the accident. When it is known there are young children in the area drivers must use extra care and attention as children do not always behave as adults would in similar circumstances. In Chohan v. Wayenberg (1990), 67 D.L.R. (4th) 318 (B.C.C.A.), the Court of Appeal stated at 319:

… There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults.

[19]         The plaintiff in Chen was 11 years old. The plaintiff in this case was somewhat older, but still of an age when a reasonable driver would know that he would not necessarily act “with same care that is expected of adults”. Indeed, the tendency of teenagers to engage in reckless behaviour is well known.

[20]         Having seen Mr. Torok and knowing that their paths were about to cross, the duty of Mr. Sekhon was to proceed with caution and to complete his turn only when he could do so safely. That meant either satisfying himself that he could complete his turn before the boys reached the intersection or, more prudently, slowing or stopping until he knew that the boys had either passed the intersection or had stopped to allow him to pass.

[21]         Mr. Sekhon failed to take either precaution. Although he clearly saw the boys and knew their direction of travel before his turn, he was apparently unaware of their location as he was actually making the turn. There is no evidence of anything that would have prevented Mr. Sekhon from stopping briefly in order to ensure that he could turn safely. I therefore find that, in the circumstances, Mr. Sekhon failed to take sufficient care and was negligent.

[22]         However, I find that Mr. Torok also failed to take reasonable care for his own safety. He was riding his bicycle on a sidewalk, then into a crosswalk, and was riding on the left, rather than the right side of the road. All of those actions are violations of s. 183(2) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. He was also riding without a helmet, in violation of s. 184. Mr. Torok was of sufficient age and experience to know, and in fact did know, that he was riding in an illegal manner. He also knew that he was approaching an intersection at a high speed and needed to be aware of the possibility of vehicles turning either into or from 150th Street. He saw the approaching school bus and failed to notice its turn signal. As a result, I find that Mr. Torok was contributorily negligent.

[23]         In such circumstances, the apportionment of liability must be based on the degree to which each of the parties was at fault, not on the degree to which each party’s fault caused the damage:  Bradley v. Bath, 2010 BCCA 10 at para. 25. In Bradley, the Court of Appeal adopted the following passage from Fleming on The Law of Torts:

[25]      The concept of contributory negligence was described in John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 302, as follows:

Contributory negligence is a plaintiff’s failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause, together with the defendant’s default, in bringing about his injury. The term “contributory negligence” is unfortunately not altogether free from ambiguity. In the first place, “negligence” is here used in a sense different from that which it bears in relation to a defendant’s conduct. It does not necessarily connote conduct fraught with undue risk to others, but rather failure on the part of the person injured to take reasonable care of himself in his own interest. … Secondly, the term “contributory” might misleadingly suggest that the plaintiff’s negligence, concurring with the defendant’s, must have contributed to the accident in the sense of being instrumental in bringing it about. Actually, it means nothing more than his failure to avoid getting hurt …

[Emphasis in original; footnotes omitted.]

[24]         The facts of Bradley are somewhat similar to this case. There, a bicycle on the sidewalk collided with a vehicle that was coming out of a gas station. The Court of Appeal said at para. 28:

[28]      In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident. Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic. He saw the defendant’s vehicle moving towards the exit he was approaching. Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle. In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station.

[25]         Although I have found that Mr. Torok, at age 14, was old enough to be found contributorily negligent, I must still consider his age in the apportionment of fault. His conduct is to be measured against what is to be expected of a reasonable person of his age and experience, not against the standard of an adult:  see Parker v. Hehr, (20 December 1993), Vancouver B914957 (B.C.S.C.), citing Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (B.C.C.A.); and McEllistrum v. Etches, [1956] S.C.R. 787.

[26]         In the circumstances, I find that Mr. Torok and Mr. Sekhon were equally at fault. Each saw the other and each failed to take the necessary precautions to allow for the other’s presence and possible movements. Balancing all of the factors, including Mr. Torok’s violations of the governing statute, his age, and Mr. Sekhon’s knowledge of the nature of the area and the likely presence of young people, I cannot say that one party is more culpable than the other. I therefore find that the defendants must bear 50 per cent of the liability for the accident.

BCCA Addresses Burden of Proof of "Failure to Mitigate" Defence in Injury Claims

Written by admin on . Posted in Uncategorized.


If you’re injured through the fault of another and successfully sue you are entitled to be compensated for your losses and damages.  However, if you ignore medical advice or otherwise fail to take reasonable steps to minimize your losses your damages may be reduced.  This principle in personal injury law is called “failure to mitigate“.
The Defendant has the burden to prove that a Plaintiff failed to mitigate their damages.  If the evidence does not establish that absent the alleged ‘failure‘ the injuries would have appreciably improved then no reduction in damages will be made.  Today the BC Court of Appeal released reasons for judgement upholding a trial verdict addressing this.
In today’s case (Mattu v. Fust) the Plaintiff suffered reasonably serious injuries in a 2004 BC motor vehicle collision.  These included symptomatic disc herniations in his back.  At trial the Plaintiff succeeded and was awarded just over $170,000 for his damages.  (You can click here to read my summary of the trial verdict).
The Defendant appealed arguing the Judge should have reduced this award because the Plaintiff did not take reasonable steps to rehabilitate his injuries.  The BC Court of Appeal disagreed and concluded that the trial judge appropriately applied the law.    In reaching this verdict the BC High Court provided the following useful comments about mitigation in personal injury lawsuits:
[7] I am not prepared to assume the judge ignored the evidence, nor can I say that the evidence was so important that it required specific mention. The judge concluded the respondent was well motivated in seeking recovery from his accident injuries and that conclusion is reasonably based on the record. The judge was not, in my opinion, looking for absolute proof of a failure to mitigate. The fact of the matter is that on the civil standard the appellant failed to establish that the respondent’s less than full compliance with medical recommendations would have made any difference to his continuing disability. The respondent never took the case on mitigation beyond generalities, such as: it is always preferable to follow your doctor’s advice. The judge drew an inference from the evidence that the respondent did not fail to mitigate. On the palpable and overriding error standard, I can see no basis for interfering with her finding in this regard.
When faced with an argument from ICBC or another defendant that you ‘failed to mitigate‘ your injuries keep in mind that they need to prove this allegation with evidence.  If you’re looking for more information about the law of mitigation in injury claims you can click here to access my archived posts.

Can Interest on Unpaid Special Damages be Recovered in a Personal Injury Claim?

Written by admin on . Posted in Civil Procedure, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 100 Comments on Can Interest on Unpaid Special Damages be Recovered in a Personal Injury Claim?


Special damages are out of pocket expenses incurred as a result of the intentional or negligent actions of others.  In personal injury lawsuits the most common special damages relate to medical treatments such as physiotherapy, massage therapy, medications and similar expenses.
When a Plaintiff pays their own special damages and succeeds at trial they are entitled to be reimbursed for these expenses along with a modest amount of interest under the Court Order Interest Act.  What about expenses that were not paid before trial where the medical providers charge interest on the unpaid accounts?  Can a plaintiff recover damages for these additional expenses?  Reasons for judgement were released today by the BC Supreme Court considering this issue.
In today’s case (Bortnik v. Gutierrez) the Plaintiff sued for injuries sustained as a result of a 2007 BC motor vehicle collision.  Mr. Justice Myers found that the Plaintiff had “exaggerated his injuries“.  Despite this finding the Court concluded that the Plaintiff suffered “some minor whiplash injuries as a result of the accident” and awarded the Plaintiff $20,000 for his non-pecuniary damages.
The Plaintiff also was awarded damages to account for the expenses related to some of his post accident chiropractic treatments.  The plaintiff did not pay these accounts before trial and the chiropractor charged interest on the unpaid accounts.  The Plaintiff asked the court to award damages to account for this interest.
Mr. Justice Myers refused to make this award finding as follows:

[54]    It appears to me that the plaintiff acted reasonably in seeking chiropractic treatment.  I would allow the expenses until December 31, 2009, when he was largely recovered.

[55]    With respect to interest, while counsel have found some authority dealing with interest on disbursements, counsel advise they have not found any case dealing with interest on special damages.  I therefore approach the matter on first principles.

[56]    If the plaintiff had paid the chiropractor, he would have been limited to interest as provided by the Court Order Interest Act, R.S.B.C. 1996, c. 79.  Assuming that interest on special costs may in some instances be recoverable as damages – something which I need not decide – it follows from my finding that the plaintiff has not proved a past wage loss that he cannot hold the defendants responsible for his inability or failure to pay the bills as they became due and owing.  He therefore is not entitled to claim interest as damages.

The BC Supreme Court has recently allowed interest on disbursements levied by service providers to be recovered in a personal injury case.  In that decision the Plaintiff’s ability to pay for the disbursement was also a relevant factor.  Today’s case leaves the door open for a similar result in appropriate circumstances for unpaid special damages.

BC Sexual Assault Civil Claims Legal Update

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

Two judgements were released this week by the BC Supreme Court dealing with issues relating to civil claims arising in the context of alleged sexual assaults.  The first case dealt with improper statements during closing arguments to a jury, the second with disclosure of records relating to a criminal prosecution.
In the first case (RK v. BR) the 17 year old Plaintiff became intoxicated at a party.   The Plaintiff “stopped at his best friend’s home to see if he could spend the night“:.    His friend was not home but his friend’s father let him spend the night.  The defendant (the father) “sexually assaulted the plaintiff later that night.”
The Plaintiff sued for damages and selected trial by Jury.   The Defendant admitted to the assault and during the course of the trial conceded that the Plaintiff was entitled to some damages.  The question was what amount was appropriate.
During closing arguments the Plaintiff’s lawyer made statements to the Jury that the Defendant objected to.  Particularly the Plaintiff’s lawyer  “questioned the defendant’s decision to stay in the courtroom while the plaintiff testified. He suggested the jury could infer the defendant had remained in court to intimidate the plaintiff, or to draw pleasure from seeing his victim again. He also suggested the jury could infer that the defendant had been grooming the plaintiff for a sexual encounter. Plaintiff’s counsel also suggested to the jury that the plaintiff would see the defendant’s face whenever he made love.”
The Defendant argued that these comments were inappropriate and inflammatory and asked that the judge dismiss the Jury.    Mr. Justice Brown reluctantly granted the motion.  In doing so he provided the following reasons:

[25]         Considering all the circumstances and applying the above framework to the case at bar, I find that the impugned portions of counsel’s submissions were highly prejudicial. First of all, the submission that the plaintiff will see the defendant’s face every time he makes love for the rest of his life has no foundation in the evidence. It was a highly speculative statement, with the sole purpose of inflaming the jury against the defendant. Counsel for the plaintiff says the statement did have a basis in the evidence because the plaintiff testified that he remembered the assault a couple of times a week, sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar situations could trigger painful memories is a further factual basis for his argument.

[26]         This argument is unconvincing. The evidence counsel relies on does not support the inference he asked the jury to draw; especially given evidence from the plaintiff that directly contradicts this statement. The plaintiff testified that since the assault he has had a positive sexual experience. There was also evidence that the plaintiff’s symptoms of posttraumatic stress disorder have diminished over time. To suggest the plaintiff would see the defendant’s face every time he made love for the rest of his life was more than mere rhetoric verging on the extravagant; it was a highly inflammatory statement that had no basis in the evidence.

[27]         Likewise, counsel’s statement that the defendant groomed the plaintiff for a sexual encounter by inviting him to sleep over and providing him with alcohol has no basis in the evidence. Counsel says the basis for it lies in several statements made during trial. He relies on the statement of the plaintiff’s mother that two or three months earlier the defendant had phoned to ask if the plaintiff could sleep over. Counsel for the plaintiff also points to the plaintiff’s testimony that the defendant sometimes bought beer for his son and his friends. He also relies on the defendant’s testimony that in his youth he arranged consensual sexual acts with other males by asking them to ‘sleep over’. He says these statements, taken together, provide a basis for the jury to draw an inference that the defendant was grooming the plaintiff for a sexual encounter.

[28]         The evidence does not provide a foundation for the statement that the defendant was grooming the plaintiff. There is no evidence the assault was premeditated. The defendant admitted he had called the plaintiff’s mother at an earlier time, but this was at his son’s request and to let the plaintiff’s mother know it was all right for the plaintiff to sleep over. The plaintiff’s arrival on the defendant’s doorstep that evening was clearly unplanned. Again, the sole purpose of this statement was to inflame the minds of the jury against the defendant. It was improper and amounts to misconduct.

[29]         Counsel’s comments on the defendant’s presence in the courtroom were also inflammatory and prejudicial, and amount to misconduct, especially in light of the exchange of letters between the parties prior to trial. A party has a right to be in a courtroom. To suggest otherwise is improper. Even more improper is the suggestion that the defendant remained in court to intimidate or leer at the plaintiff. The defendant expressed a willingness to absent himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions on a party for exercising his right to be present is misconduct. Suggesting a lack of empathy for remaining in court when counsel knew he had received a letter from the counsel for the defendant specifically offering to absent himself if doing so would make the plaintiff feel more comfortable is also misconduct.

[30]         Counsel’s submission significantly prejudiced the defendant. The submission was relatively short. Taking all of Mr. McLeod’s inflammatory and improper statements together, I concluded that if I were to try to disabuse the jury of these matters I would simply re-emphasize them in the jurors’ minds. If I instructed the jury to disregard these portions of counsel’s brief submission entirely, my comments would likely rebound against anything he had said and against the plaintiff’s case. I concluded that I could not right the scales of the resulting prejudices with instructions anywhere close to neutral again. I must ensure there is no prejudice to either side. I do not see how any corrective judicial comments could do anything but suggest that counsel had misled the jury, intentionally or not.

[31]         A judge discharges a jury with great reluctance. In this case, the jury was well constituted. They were attentive. At the beginning of the trial, I carefully explained their important role in the judicial system in British Columbia and the confidence placed in them. Discharging a jury in these circumstances embarrasses the court and, more importantly, tends to undermine public confidence in the justice system.

[32]         However, given the circumstances, and considering the potential prejudice, no less to the plaintiff’s case then to the defendant’s, it would be unfair to continue with the jury in the circumstances. The only appropriate response was to discharge the jury with the regrets and thanks of the court.

[33]         The defendant’s application to dismiss the jury and continue by judge alone is granted.

________________________________________________________________________________________________

The second case released this week addressed the ability of a party to have the BC Supreme Court order production of materials relating to criminal charges arising from allegations of sexual abuse.

In this case (The British Columbia College of Teachers v. British Columbia (Attorney General) ) a former teacher was “criminally charged with sexually offending against a child.“.  In the course of the prosecution a preliminary inquiry was held and the alleged victim testified.   The Attorney General stayed the prosecution before trial.

The BC College of Teachers wanted to access a copy of the transcript of the preliminary inquiry evidence to use against the former teacher in “disciplinary proceedings“.   The former teacher opposed this.

Madam Justice Griffin ordered that the records be produced and provided the following reasons:

[41]         In an analogous context of considering an ongoing publication ban, the Court of Appeal of this province considered that a trial judge’s analysis should not be based on whether a benefit to the administration of justice could be gained by the publication of redacted information, but rather, should be based on whether a serious danger could be avoided by declining to provide the information: Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 at para. 72.

[42]         Here, so long as the information is provided in a way that protects the identity of the complainant and thereby maintains the publication ban, there is no danger to be avoided by declining to allow the sought-after information to be provided.  To put it another way, I do not consider that the administration of justice will be harmed if the preliminary inquiry transcript is produced to the College in a way that continues to protect the identity of the complainant.

[43]         I am therefore persuaded that this is a case where I ought to exercise my inherent jurisdiction to allow for production of a transcript of the preliminary inquiry to the College, in such a way as to continue to maintain the publication ban pursuant to s. 486.4(2).

[44]         In the circumstances of this case, I grant the following declaratory relief:

(a)      the publication ban imposed under s. 539(1) of the Code in relation to Abbotsford Provincial Court Registry file No. 60526, no longer applies, and thus does not apply to any request by the College for a copy of the transcript of the evidence that was taken at the preliminary inquiry; and

(b)      the continuing publication ban imposed under s. 486.4(2) of the Code will not be violated if the Crown redacts all information that could identify the child complainant from the transcript of the evidence that was taken at the preliminary inquiry in Abbotsford Provincial Court Registry file No. 60256 and produces the redacted transcript to the College for its use in disciplinary proceedings against Mr. Sidhu.

BC Court of Appeal to Consider Discretionary Costs Awards and Formal Settlement Offers

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 61 Comments on BC Court of Appeal to Consider Discretionary Costs Awards and Formal Settlement Offers

After dozens of trial judgements which have applied Rule 37B (the current rule dealing with formal settlement offers which will be replaced with the almost identical Rule 9 on July 1, 2010), the BC Court of Appeal has agreed to hear what I believe will be their first case dealing with the application of this rule.
Reasons for judgement were published today on the BC Court’s Website where the BC High Court agreed to hear such an appeal.  In today’s case (Gehlen v. Rana) the Plaintiff was injured in a BC motor vehicle collision.  The Plaintiff sued.  Prior to trial ICBC made a formal settlement offer of $22,000.  The Plaintiff rejected this and proceeded to trial.  At trial a jury awarded just over $13,000 in damages.
In these circumstances the trial judge had the discretion to order that the Plaintiff pay the Defendant’s trial costs.    Mr. Justice Leask refused to do so and instead ordered that the Defendant pay the Plaintiff’s costs.   (You can click here to read my article discussing the trial decision).
The Defendant (through ICBC) asked for permission for the BC Court of Appeal to hear the case and they agreed to do so.  In deciding that this case merits an appeal the BC High Court reasoned as follows:

[3]             I am satisfied that the defendant has met the test for leave to appeal on both grounds, as that test is set out in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. (1988), 19 C.P.C. 3d 396 (B.C.C.A.) (Chambers). With respect to the merits of the appeal, I appreciate that an order for costs is a discretionary order to which an appellate court will give considerable deference. I am nevertheless satisfied that the first ground of appeal may be characterized as a question of law, and the second as an error in principle. In fact, counsel advises that leave has been granted in another appeal on the question of whether it is appropriate to adjust costs on the basis that one party chose a jury trial.

[4]             The issue is of significance to the parties as the order under appeal entitles the plaintiff to costs in the range of $47,000, while if the defendant is successful he will recover costs in the range of $8,000.

[5]             It is more difficult to see significance to the practice in this appeal, but I do not find that militates against granting leave. The defendant does say that this court has not had the opportunity to hear many cases that provide guidance on R. 37B and its interaction with R. 57(10).

[6]             Finally, being an order for costs at the end of the action there is no need to consider possible delay due to the appeal.

As I recently wrote, ICBC has asked the Court of Appeal to also consider the issue of ‘costs’ awards when Plaintiff’s receive a judgement below $25,000 at a BC Supreme Court trial and these appeals may be heard together.

Clarity from the BC High Court will be welcome on numerous issues regarding the effects of formal settlement offers and costs awards after trial and I will be sure to report the highlights of the decisions when they are pronounced.

More on ICBC Soft Tissue Injury Claims and Plaintiff Credibility

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.
In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.
This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.

BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Jury Trials, Uncategorized. 58 Comments on BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

Reasons for Judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair award for pain and suffering for accident related Thoracic Outlet Syndrome.
In today’s case (Bransford v. Yilmazcan) the Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection crash involving a taxi and the issue of fault was admitted.  The matter went to trial before a Jury and they were asked to decide the value of her claim.
The evidence showed that the Plaintiff suffered from post traumatic Thoracic Outlet Syndrome.   The Plaintiff had various therapies including surgical intervention but nothing provided long term relief.  By the time of trial her symptoms kept her from competitive employment.  The Jury ultimately awarded over $1million in total compensation for her injuries and losses.  This award included $385,000 for her non-pecuniary damages.
The non-pecuniary damages award was then reduced to $327,350 to bring it in line with the general Canadian cap on non-pecuniary damages in negligence cases.  The Defendant then appealed seeking a new trial.  The BC High Court largely dismissed the appeal but did reduce the non-pecuniary damages to $225,000 which is one of the highest valuations for pain and suffering in BC for Thoracic Outlet Syndrome that I’m aware of.  In doing so the Court provided the following reasons:
[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.

Ontario Proposes Artificial Caps for "Minor Injuries"

Written by admin on . Posted in Tort Reform, Uncategorized.


Although this blog is focused almost exclusively on British Columbia legal issues relating to personal injury claims, I do like to keep my eye on other Canadian jurisdictions to stay appraised of significant legal developments.  One topic I particularly focus on is so called ‘tort-reform‘ which is generally code for efforts to change the law by limiting the right of compensation to those harmed through the carelessness of others.
As I recently posted, while Nova Scotia has recently taken steps to remove their long-standing artificial caps on pain and suffering awards for so called ‘minor injuries‘, Ontario seems to be moving in the opposite direction.
Today I came across this article from the Canadian Underwriter website which states that “Ontario’s insurance regulator, the Financial Services Commission of Ontario (FSCO), has posted its new Minor Injury Guideline (MIG), a key pillar of the province’s proposed new auto insurance reform package.”
Under the proposal people with ‘minor’ injuries are entitled to benefits “subject to a $3,500 limit“. The proposed definition of a “minor injury” according to the article is:
“a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation [a partial but not complete dislocation of the joint], and any clinically associated sequelae [symptoms following on these injuries].”
A whiplash-associated disorder is further described as a whiplash injury that “does not exhibit objective, demonstrable, definable and clinically relevant neurological signs and does not exhibit a fracture in or dislocation of the spine.”
Rarely is it wise public policy to limit the rights of those injured / affected by the actions of others as has now been demonstrated with the wisdom of hindsight with the public disdain at the $75 million oil liability cap which is drawing well deserved critisim south of the border.
Efforts to limit the rights of people to seek lawful compensation usually have one predictable result, and that is to deprive the most deserving people in the affected class of fair and meaningful restoration.  Hopefully this minor injury guideline will be reformed before it comes into force.

$45,000 Non-Pecuniary Damages Awarded for Chronic Mild-Moderate Soft Tissue Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff $85,000 in total damages for chronic soft tissue injuries.
In today’s case (Fennell v. Hiebert) the Plaintiff was involved in a motor vehicle collision when she was 10 years old.  She was a passenger in a van that was rearended by a pickup truck.  The collision was “sharp, sudden and unexpected” and was forceful enough to send the van off the road and into a ditch.
Fault was admitted.  The focus was the value of the Plaintiff’s claim.   The Plaintiff suffered soft tissue injuries to her neck and shoulder and these continued to bother her by the time of trial (12 years after the collision).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 Mr. Justice Rogers made the following findings:

[20]         On the whole, the evidence at trial was sufficient to establish that it was more likely than not that the motor vehicle accident caused the plaintiff to suffer a mild to moderate soft?tissue injury to her neck and right shoulder. That injury continued to be symptomatic in the two or three years after the accident. The symptoms were not particularly acute, as evidenced by the fact that experiencing them has faded from the plaintiff’s memory, but they were severe enough to prompt her to make complaints and to seek treatment from her chiropractor and family physician. Those symptoms began to be aggravated on a more regular basis when the plaintiff became old enough to participate in heavier chores around the family farm. They were also regularly aggravated by her work in the country feed store.

[21]         Dr. Vallentyne opined that the plaintiff is one of the 7 percent or so of soft tissue injury sufferers whose symptoms simply do not disappear with time. Given the persistence of the plaintiff’s symptoms since the accident, I am persuaded that Dr. Vallentyne’s opinion accurately describes the plaintiff’s situation. She does, in fact, have a soft tissue injury which does and will continue to cause pain in her neck and right shoulder. That pain comes on with heavy physical activity or when the plaintiff sits hunched over a desk for more than an hour or two…

[25]         In the plaintiff’s case, the injuries are permanent. They may become somewhat more tolerable if the plaintiff adheres to a structured exercise regimen, but they will nevertheless plague the plaintiff for the rest of her days. The injuries will bother her when she does particularly heavy work with her arms and shoulders, or when she sits for a prolonged period. The plaintiff will, however, be able to enjoy the vast majority of what life has to offer her.

[26]         In my view the proper award for non?pecuniary damages in this case is $45,000.

More on BC Injury Claims and Improper Closing Arguments – Appealing to Juror's Emotion

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized.

Further to my recent post on this topic, part of a trial lawyer’s job is to convincingly advance their client’s case.  There are limits, however, on the types of statements a lawyer can make to a jury and if these boundaries are overstepped a mistrial may occur.  Today reasons for judgement were published on the BC Supreme Court website discussing the Court’s discretion to order a mistrial when improper statements are made in the course of trial.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured and sued for her damages.  During closing arguments before a Jury the Plaintiff’s lawyer said “I have been carrying the burden (of the Plaintiff’s) file from the time she first walked into my office.  At this point I can hand that burden to you with the hope that she will be restored as much as money can restore her“.
The Defence lawyer objected to this arguing that the statement was made to “appeal to the jury’s sentiment and emotion, improperly interpose counsel in the proceedings and suggest a form of pact between the counsel and the jury“.  The Defence lawyer asked that the Jury be discharged and the verdict be pronounced by Judge alone.  Madam Justice Ross agreed that the statement was in fact inappropriate but chose not to discharge the jury.  In reaching this decision the Court reasoned as follows:

[4]             In such applications, the onus is on the applicant to establish that the misconduct was likely to prejudice the jury, or may have affected a verdict or deprived a party of a fair trial. See Giang v. Clayton, 2005 BCCA 54, 38 B.C.L.R. (4th) 17. The question is whether, with appropriate instructions in the circumstances, the jury will be able to dispel the matters of concern from their minds.

[5]             The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors’ sympathies divert them from this important responsibility. In that regard, see Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46. In that case, at para. 46 the Supreme Court of Canada decision in Hesse v. The Saint John Railway Company (1899), 30 S.C.R. 218 was cited, in which the court stated at 239:

It is perhaps impossible to prevent jurors looking at a case in this way, but at least they ought not to be invited to do so, and such direct resorts or appeals to the feelings and interests of the individual jurymen can only exercise a disturbing or misleading influence.

[6]             In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), the court continued with further commentary with respect to this issue noting at para. 15:

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence . . .

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness . . . requesting a jury to act in a representative capacity will result in a mistrial.

[7]             In Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349, the court noted at para. 37 that the address in that case:

. . . invited the jury to identify and sympathize with the plaintiff. It put [counsel’s] personal and professional life before the jury and invited the jury to identify with his cause.

[8]             With respect to the issue of misconduct and intention, I note that misconduct is not to be limited to deliberate wrongdoing and authority for that is found in Birkan v. Barnes, 69 B.C.L.R. (2d) 132 (C.A.).

[9]             I am mindful of the importance of trial by jury and the plaintiff’s selection of that mode of trial. Such a selection should not be lightly set aside. I am also mindful that the jury deliberations are confidential and if limiting instructions are given, one must take on faith that they will be observed. That consideration makes this decision a very difficult one, however, I have concluded that this was an isolated transgression and that it can be addressed with a strong limiting instruction to the jury that will be given prior to the time that defence counsel commences his closing.