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Cyclist 15% At Fault for Crash For Riding in Crosswalk

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.
In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC.  He approached  a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk.  At the same time the Defendant was driving near the middle lane of Martin Drive.  She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.
The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly.  The Plaintiff was also found 15% at fault for riding in the cross-walk.  Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases.  In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:
[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.

$200,000 Non-Pecuniary Damage Assessment in Jay Walking Collision

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Pelvis Injury Cases, ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with fault for a collision involving a jaywalking pedestrian.
In last week’s case (Wong-Lai v. Ong) the elderly Plaintiff and her husband where involved in a serious collision in 2009.  It was a dark and rainy Vancouver Autumn evening.  As they crossed the street to return to their car they were struck by a vehicle driven by the Defendant.  The Plaintiff was not in a marked cross-walk at the time.  Her husband died and the Plaintiff suffered severe injuries.
The Court found that while the Plaintiff was jay-walking she should have been visible to the Driver.  The Court found that the driver was not paying sufficient attention and assessed him 25% at fault.  In reaching this conclusion Mr. Justice Sewell provided the following reasons:

[56] I have concluded that Mr. Ong must bear some of the legal responsibility for the accident.  The law is well-settled that a driver of a vehicle owes a duty to keep a proper lookout and to avoid exercising his or her right of way in the face of danger of which he or she was or ought to have been aware.  In some cases the expression used is that that person must avoid dangers of which he or she was aware or which were reasonably apparent.  I do not think that the defendant in this case can avoid liability merely because he did not see Ms. Lai before impact.  The critical question is whether he ought to have seen her or, in other words, whether her presence was reasonably apparent at a point when Mr. Ong could have taken steps to avoid running her down.

[57] Drivers of motor vehicles are not to be held to a standard of perfection.  However I do not think that the possibility that persons may be crossing a highway at a point other than a crosswalk or intersection is so remote that a driver has no duty to take it into account in keeping a lookout.  The evidence in this case persuades me that Mr. Ong was not keeping a proper lookout immediately prior to the accident.  His own evidence is that he was not looking forward.  While it is perfectly permissible and prudent for a driver who is changing lanes to do a shoulder check I think it is also incumbent on such a driver to take the steps necessary to ensure that it is safe for him to do so.

[58] I have also concluded that Mr. Ong was probably concentrating on the manoeuvre of changing lanes and on the parked car in front of him to the exclusion of keeping a proper lookout.  I therefore find that Mr. Ong was negligent and that the defendants must bear some portion of the liability for Ms. Lai’s injuries…

[64] In all of the circumstances I find that Ms. Lai is 75% liable for the accident that occurred and Mr. Ong 25%.  Ms. Lai is therefore entitled to recover 25% of the damages she suffered as a result of this tragic accident.

The Plaintiff’s damages were assessed at just over $307,000.  $200,000 of this assessment were for the Plaintiff’s non-pecuniary loss.  In arriving at this figure Mr. Justice Sewell provided the following summary of the Plaintiff’s injuries:

[65] In this case Ms. Lai suffered very grievous injuries. She was struck by a car which I have found to be travelling at close to 60 kilometres per hour.  A good summary of her injuries is found in the report of Dr. Ng.  It is as follows:

1) Gross bleeding from urine requiring emergency urological consultation. A CT cystogram ruled out bladder rupture. Ct scans of the kidneys did not show any severe renal damage and she only required observation and support. However angiogram showed the pelvic fractures has ruptured blood vessels and she had bleeding in the blood supply to the pubic bone and these required embolisation to stop the bleeding.

2] Cervical Cl C2 unstable fracture. This required immobilisation and stabilisation in a collar and traction for the first eight weeks. She also has a moderate central cervical disc protrusion at level C6-7 which indented her cervical spinal cord.

3] Chest contusions left upper lobe, right middle lobe, and multiple rib fractures of the left 3 to 6 ribs and left 8 rib.

4) Multiple pelvic comminuted fractures bilaterally, namely superior and inferior pubic rami. She required immobilisation for her neck and leg fractures as well as for these fractures for the first eight weeks. She remained in the intensive care unit for a few weeks for treatment and stabilisation of all her injuries.

5) The left Tibial and left Fibular fractures require manual reduction and internal fixations on December 1, 2009. She returned to the intensive care unit post operatively.

6) Brain injury, which on CT scan showed multiple bleeding present inside areas of her brain and a small subdural hematoma (within the skull but outside the brain), located in between the cerebral hemispheres. There is a large left scalp hematoma. Her conscious levels and neurological state were monitored in intensive care over the next few weeks

…

[83] In my view the most important factors in this case are the severe and painful injuries suffered by Ms. Lai, the marked degree of permanent disability, the loss of independence and the increased risk of morbidity and mortality identified in Dr. Guy’s opinion.  I also note that Ms. Lai’s stoicism and determination to make the best of her predicament should not diminish the amount of damages awarded to her.

[84] I have reviewed the numerous decisions on pecuniary damages involving serious injuries cited to me by counsel.  These cases are all of course fact specific.  My review of them, coupled with a consideration of the principles restated in Stapley, leads me to conclude that an award of non pecuniary damages in the amount of $200,000 is appropriate in this case.

Plaintiff Statement to Police Excluded Based on Hearsay Objection

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

(Update: November 6, 2012 – the trial judges liability decision was upheld by the BC Court of Appeal in reasons for judgement released today)
In my effort to archive ‘voir dire‘ rulings dealing with civil procedure issues in personal injury cases, I summarize recent reasons for judgement released by the BC Supreme Court, New Westminster Registry, addressing the admissibility of a Plaintiff’s post accident statement to police.
In last week’s case (Nerval v. Kherha) the Plaintiff was involved in an intersection collision in Abbotsford in 2007.  She sued for damages.  Following the collision the Plaintiff provided a statement to the investigating officer regarding the circumstances of the crash.  At trial the Plaintiff testified as to how the collision occurred.  She also wished to introduce her statement to the investigating officer.  The Defendant objected arguing this statement could not properly be admitted.  Mr. Justice Armstrong agreed and ruled that the statement was inadmissible.  The court provided the following concise reasons:

[47]Ms. Nerval applied to tender her statement to Cst. Baskin because she could not recall the events surrounding the collisions. A voir dire was held. Cst. Baskin reported that Ms. Nerval had told him that she was making a left-hand turn to go westbound on Sandpiper. At the time there was a van facing southbound indicating a left turn and an intention to go eastbound on Sandpiper. She said she did not see any other motor vehicle coming towards her. She did not remember if she had her signal light on; there was no mention of a signal light in his notes. Ms. Nerval told him that the other van had its signal on. That is the totality of his conversation with Ms. Nerval.

[48]The defence opposed the admission of this statement into evidence on the basis that it fails to meet the requirement of necessity. The defence argues that to be admissible the statement must be used to rebut an allegation of recent fabrication, be a prior inconsistent statement, or be a statement contemporaneous with an event reported in the statement.

[49]I conclude that the statement is not admissible. The circumstances under which the statement was taken do not reflect that it was taken contemporaneously with the event. The evidence did not support the suggestion that it was a contemporaneous report. There was no suggestion that the statement was inconsistent with the evidence given by Ms. Nerval at the trial and no suggestion that the there was an allegation of recent fabrication of evidence.

[50]If I am wrong in my conclusions regarding the admissibility of the statement, I would otherwise have concluded that the statement did not contain any information that materially augmented the evidence of Ms. Nerval at trial.

More on Implied Consent of Registered Vehicle Owners: "Reasonable Inferences"

Written by admin on . Posted in BCSC Civil Rule 9, ICBC Liability (fault) Cases. 50 Comments on More on Implied Consent of Registered Vehicle Owners: "Reasonable Inferences"

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with an interesting issue – can a Court infer consent to operate when a commercial vehicle is involved in a ‘hit and run’ collision?
In last week’s case (Perret v. John Doe) the Plaintiff was injured in a 2005 collision.  She was run off the road by a U-Haul truck which was driving the wrong way on the highway.  The driver of the U-Haul did not remain at the scene of the accident.  The Plaintiff sued U-Haul arguing they are vicariously liable for the careless driver’s deeds under s. 86 of the Motor Vehicle Act.  She also sued ICBC under the unidentified motorist provisions of the Insurance (Vehicle) Act.
ICBC brought an application arguing U-Haul is at fault and that they are liable for the crash because anyone driving the vehicle likely had their consent to do so.  U-Haul opposed arguing ICBC should pay for the Plaintiff’s damages as this was an unidentified motorist claim and consent could not be proven.
The Court was asked to determine “whether ICBC or…U-Haul Co. is the proper Defendant” as a special case under Rule 9-3.  Ultimately the Court held that U-Haul was the proper defendant finding that it was reasonable to infer, on a balance of probabilities, that the driver had the company’s consent to drive.  In reaching this conclusion the Court made the following findings:







[15] The following agreed facts about the accident of May 12, 2005, could support a finding of consent:

1) The truck which caused the plaintiff to lose control of her vehicle was owned by U-Haul;

2) U-Haul rents vehicles to customers in British Columbia;

3) U-Haul consents to drivers, other than the person with whom it contracted, to drive the vehicle if they are at least 18 years of age and have a driver’s licence;

4) Approximately 135 U-Haul vehicles were rented in British Columbia on May 12, 2005;

5) There were 114 vehicles owned by U-Haul Canada that were previously stolen and unrecovered on May 12, 2005, of which 15 had been stolen in British Columbia; and

6) The driver of the U-Haul that caused the accident was probably a man in his 50s.

[16] What I derive from the above agreed facts is that:

1) It is probable that the U-Haul vehicle was not stolen. That suggests it was driven, either by the person who initially rented it, or by someone who that person agreed could drive it, and who was at least 18 years of age. U-Haul accepts that if either is true there is consent, assuming the driver had a driver’s licence;

2) I take notice that a driver in British Columbia must have a driver’s licence and therefore I conclude it is probable this driver had one.

[17] There are other facts which may be inconsistent with consent. They are the following:

1) The driver was clearly lost;

2) The driver may have been uncertain of his ultimate destination;

3) The driver did not stop at the time of the accident.

[18] Those facts may be inconsistent with consent because:

1) It would be expected that a person who rents a U-Haul vehicle will have done so for a particular purpose and will have known his destination and the route he intended to follow;

2) A driver who leaves the scene of an accident may do so because he knew he was driving a stolen vehicle.

[19] However, there are numerous other possible reasons for failing to remain at an accident scene. One could be that the driver did not know he had caused an accident. There was no contact between the vehicles involved in the accident on May 12, 2005. Another could be that the driver knew he had caused an accident and did not wish to face the consequences. There may be a multitude of other reasons peculiar to this driver which caused him to leave the scene of the accident. In my view, the fact the driver left the scene of the accident does not assist in determining the issue of consent.

[20] When considering the circumstances of the accident of May 12, 2005, there is obviously no certainty when attempting to reach a conclusion that the U-Haul vehicle was driven by a person who had consent. However, the law does not require certainty. It does require that I draw a reasonable inference and do not rely on conjecture. The Court of Appeal in Lee v. Jacobson, [1994] B.C.J. No. 2459, has described Caswell v. Powell Duffryn Associated Colleries Ltd., [1940] A.C. 152 (H.L.) [Caswell], as the leading case making that distinction. In Caswell, at 169-70, Lord Wright observed:

My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

[21] I conclude I can safely draw an inference that it is more likely than not that the driver had consent. I therefore answer question 2 in the affirmative.

[22] ICBC is entitled to its costs against U-Haul, if requested.








$125,000 Non-Pecuniary Damage Assessment for TBI – Adverse Inference Discussed

Written by admin on . Posted in Civil Procedure, ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Elbow Injury Cases, ICBC Headache Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized.

Update March 21, 2014 – the Liability findings in the below case were upheld today by the  BC Court of Appeal
_____________________________________
Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.
In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.
The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:
 
 
 
 
 
 
 
 
 
 

[134]Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji’s left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.

[135]Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…

 
 
 
 
 
 
 
 
 
 

[270]Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271]In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

 
 
 
 
 
 
 
 
 
 

[240]In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.

[241]However, where, as here, counsel has assumed control of medical management of a plaintiff’s injuries, the circumstances are not ordinary.

[242]Dr. Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.

[243]Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244]In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

[245]Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr. Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.

 
 
 
 
 
 
 
 
 
 

Can You Sue Twice For Damages From the Same Event?

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 104 Comments on Can You Sue Twice For Damages From the Same Event?


(UPDATE June 28, 2012 – the case discussed in the below post was reversed by the BC Court of Appeal in reasons for judgement released today; you can click here to read the Court of Appeal’s reasons)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this topic.
In last week’s case (Singh v. McHatten) the Plaintiff was involved in a 2006 motor vehicle collision.  Following the collision ICBC found the Plaintiff at fault.  Displeased with this decision, the Plaintiff sued the Defendants in small claims court asking the Court to decide the issue of liability.  The Plaintiff sought damages for his deductible and increased insurance premiums.  His trial succeeded with the Court finding the Defendants at fault and awarding damages to the Plaintiff.
Before the limitation period expired the Plaintiff sued for damages stemming from his personal injuries from the same collision.  He did so in the BC Supreme Court.  ICBC brought a motion to dismiss the lawsuit arguing that the Plaintiff was “estopped” from suing again due to the small claims court trial.  Madam Justice Loo disagreed and allowed the personal injury lawsuit to proceed.  In dismissing ICBC’s motion the Court provided the following reasons:

[31] In my view the cause of action in the prior Small Claims action is distinct from the cause of action in this Court. While the Notice of Claim filed by the plaintiff in Small Claims Court claimed “vehicle damage & repair costs”, it is clear on a review of the transcript of the proceedings that the plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for repair costs because ICBC had paid the repair costs. The primary issue was ICBC’s determination that the plaintiff was wholly at fault for the accident and the plaintiff’s increased insurance premiums. Counsel for the plaintiff made it clear that the claim for personal injuries and damages would be dealt with later, and that was understood by counsel for ICBC. On that basis neither the third nor the fourth criteria for cause of action estoppel, or the first criteria for issue estoppel have been met.

[32] The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33] I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability isres judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[34] The application is dismissed with costs.

As a point of interest, the recent BC Court of Appeal case of Innes v. Bui is worth reviewing for the Court’s comments on appropriate parties to sue when the only dispute following a collision is ICBC’s determination of fault and the premium consequences that flow from this.

"Black Box" Data Evidence and Courtroom Admissibility

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 49 Comments on "Black Box" Data Evidence and Courtroom Admissibility


The July, 2011 edition of the Advocate has a useful article titled “Electronic Crash Data in Cars: Technical and Legal Perspectives“.  The authors (Arthur Ross and Jonathan Lawrence) take time to discuss the increasing availability of Event Data Recorder (“EDR”) information following motor vehicle collisions and the legal hurdles this data can pose when being introduced in evidence.
I recommend that anyone interested in this topic review the article in full.  In short, the authors conclude that “We suggest that the approach taken in Gratton more appropriately reflects the correct judicial approach when a court is asked to admit and then weight any EDR evidence and any opinion derived from it. There is no legislation in Canada specifically governing the admission into evidence of EDR data.  The federal and provincial Evidence Acts should be amended to permit the admission of the evidence either as a “business record” or on a basis similar to blood-alcohol test devices“.
The authors reference the following useful authorities:
R v. Berner
R v. Cianchino
R v. Gill
R v. Moxam
R v. Brander
R v. Lanza
R v. Gratton

Driver Faultless For Loss of Control Caused by "Agony of Collision"

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

(Update May 30, 2012 – The Plaintiff’s appeal from the below decision was dismissed by the BC Court of Appeal in reasons for judgement released today)
As previously discussed, the principle of “agony of collision” can excuse a driver who loses control of their vehicle if the loss of control is preceded by an unexpected imminent danger not caused by them.  Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, demonstrating this.
In this week’s case (Robbins v. Webb) the Defendant was driving a pick-up truck in a southbound direction.  The roads were ‘very slippery‘ due to winter driving conditions.  The Plaintiff was approaching in the on-coming direction and began to fishtail.  The Defendant responded by hitting his brakes.  This caused the Defendant’s vehicle to lock up and proceed into the oncoming lane of travel.  The vehicles collided.
The Plaintiff sued the Defendant for the injuries he sustained in this crash.  The case was dismissed with the Court finding that the Plaintiff was careless in initially losing control and this resulted in the Defendants reasonable reaction.  In dismissing the lawsuit Mr. Justice Melnick provided the following reasons:








[13] Thus, I accept that Mr. Webb was fully in his own southbound lane when he first commenced braking. I also find that the reason Mr. Webb applied his brakes hard, locking them and causing his vehicle to slide into the northbound lane, was because Mr. Robbins had temporarily lost control of his vehicle due to the poor tread on the Cobalt’s tires coupled with his driving too fast for the icy road conditions, which caused the left rear of the Cobalt to skid sideways in a clockwise direction, crossing partially into the southbound lane. Mr. Webb reacted to a situation precipitated by Mr. Robbins, not the other way around.

[14] It may well be that if Mr. Webb had not braked, his vehicle would not have skidded into the oncoming lane. Mr. Robbins was probably in the process of regaining control of the Cobalt when he was struck. But, in the heat of the moment, one cannot say that Mr. Webb’s reaction was inappropriate. To his right was a steep uphill bank, so his options were very limited. He reacted to the position he found himself in as a result of the negligence of Mr. Robbins.









$210,000 Non-Pecuniary Damage Assessment for Frontal Lobe and Brachial Plexus Injuries

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for severe injuries following a motor vehicle collision.
In last week’s case (Harrington v. Sangha) the Plaintiff was struck by a tractor trailer in 2007.  Another motorist who initially lost control causing the tractor-trailer to collide with the Plaintiff was found fully liable for the incident.   The Plaintiff suffered a frontal lobe brain injury in addition to a brachial plexus injury.

(Frontal Lobe Graphic via Wikipedia)
The Plaintiff was disabled from employment as a result of the pain from the brachial plexus injury and the cognitive changes due to the frontal lobe injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $210,000 Mr. Justice Willcock provided the following reasons:




[183] There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

[184] Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

[185] It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

[186] On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.




Plaintiff At Fault in Fatal Tractor Trailer Collision for Running Stop Sign

Written by admin on . Posted in ICBC Liability (fault) Cases. 44 Comments on Plaintiff At Fault in Fatal Tractor Trailer Collision for Running Stop Sign

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault following a two vehicle collision.
In last week’s case (Rackstraw v. Robertson) the Plaintiff was involved in a collision with a tractor trailer.  The tractor trailer was travelling Northbound on Mount Lehman Road.  The Plaintiff was travelling eastbound on Sunset Crescent which forms a T-intersection with Mount Lehman Road.

The Defendant “decided to pass a northbound vehicle ahead of him”.   To do so he accelerated above the speed limit and had to travel in the southbound lane.  As he did so he saw the Plaintiff approach the intersection and run the stop sign which was facing him on Sunset Crescent.  The vehicles collided and the Plaintiff died shortly after.
Ultimately the Plaintiff was found fully at fault for the collision.  In reaching this conclusion Madam Justice Fisher provided the following reasons:
[25] Mr. Rackstraw owed a duty of care to other drivers travelling on Mount Lehman Road, in particular Mr. Robertson.  He breached that duty by failing to stop at the stop sign, failing to keep a proper lookout and failing to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road.  Mr. Rackstraw was the servient driver at all times…
[32] …. the fact that Robertson was travelling over the speed limit will only constitute negligence if his speed is what prevented him from taking reasonable evasive action: see Cooper v. Garrett, 2009 BCSC 35 at para. 42.  In my view, there is no evidence which establishes that Robertson’s speed prevented him from doing so. His truck was just about at the intersection when he first saw Rackstraw’s vehicle, and only his trailer, or part of it, was still in the southbound lane when the impact occurred…
[37] …it is my opinion that the accident in the case at bar was caused solely by the failure of Mr. Rackstraw to stop at the stop sign, to keep a proper lookout and to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road.  When Robertson started his pass, there was no reason for him to believe that he could not do so safely or that he would interfere with the travel of another vehicle.  As in Ferguson, he was engaged in a lawful manoeuvre.  He did not see, and could not reasonably have seen, the Rackstraw vehicle until he was just about at the intersection and he had no reasonable opportunity to avoid the collision.