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$140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 63 Comments on $140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages following a 2005 motor vehicle collision.
In this week’s case (X v. Y) the Plaintiff was an RCMP officer.  (Supplemental reasons were released permitting the Plaintiff to identify himself by initials and to seal the Court file given the Plaintiff’s undercover work).  He was responding to an emergency call.  He was travelling on his motorcycle when he was struck by a truck driven by the Defendant who was in the course of making a U-turn.  Although fault was put at issue the Court found the defendant fully liable for the collision.

The Plaintiff suffered a burst fracture at the T-12 level which required surgical intervention.  He suffered from chronic pain following this and although he was able to return to police work he could only do so in a more administrative (as opposed to front-line) capacity.  In assessing non-pecuniary damages at $140,000 Madam Justice Dardi provided the following reasons:
[101] The plaintiff underwent surgery on July 21, 2005, after which Dr. D. explained to the plaintiff that he had a burst fracture in his vertebrae in the thoracolumbar region, and that metal rods, clamps and screws had been placed in the area to fuse the spine together. The plaintiff was fitted with a clamshell brace in order to stabilize his fused spine and prevent him from moving. He was not allowed to sit or stand up unless he was wearing this brace. He used a walker to manoeuvre around the hospital. After physiotherapy treatments, he was able to walk short distances, go to the bathroom, and get in and out of his hospital bed. He was released from the hospital on July 27, 2005…
[147] It is uncontroversial that the plaintiff suffered a serious injury in the accident: a fractured spine which required surgical fusion with metal instrumentation. The medical evidence clearly establishes that he is permanently disabled insofar as repetitive heavy bending, lifting and high-impact activities. He has an increased risk for the development or acceleration of degenerative disc disease and is at an increased susceptibility for reinjuring his back…




[163] In summary on this issue, I find that the plaintiff’s symptoms are genuine. He regularly experiences varying degrees of pain and significant stiffness, tightness, and spasms in his back. The cold exacerbates his symptoms. He will continue to experience episodic aggravation of his symptoms. He is at an increased risk of developing degenerative arthritis and he has an increased susceptibility for further injury to his back. He also faces the possibility of another surgery to remove the hardware in his back. He has reduced stamina and tires much more easily than prior to the collision. I also conclude that as the plaintiff ages, there is a substantial likelihood that his pain and discomfort will increase because he will not be able to maintain the same level of conditioning in the muscles supporting the fused area of his back.

[164] In terms of his career, the preponderance of the evidence clearly supports a finding that the plaintiff is not fit to perform the full range of policing duties. He must avoid impact activities and any risk of physical altercations with suspects, which restricts him from participation in front-line policing duties. He can no longer perform the duties of a motorcycle officer, nor is he able to pursue his ambition to join the ERT as an operational member…




[179] While the authorities are instructive, I do not propose to review them in detail, as each case turns on its own unique facts. Having reviewed all of the authorities provided by both counsel, and in considering the plaintiff’s particular circumstances, I conclude a fair and reasonable award for non-pecuniary damages is $140,000.

Plaintiff 50% At Fault for Running Yellow Light

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

As the BC Court of Appeal recently confirmed, there is a range of possible splits of fault following many intersection collisions.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this frequent type of collision.
In last week’s case (Ziani v. Thede) the Plaintiff was involved in a 2006 accident in Vancouver, BC.  He was travelling west on Kingsway.  As he approached the intersection of Boundary Road the light turned yellow.  He increased his speed to run the light.  At the same time the Defendant was approaching from the opposite direction on Kingsway making a left hand turn onto Boundary.  The Defendant testified that he had an advance green arrow although this evidence was not accepted with the Court finding that the Defendant was faced with the same yellow light that the Plaintiff had.

Madam Justice Bruce found that both motorists were equally to blame and in doing so provided the following reasons for judgement:




[24] On the facts of this case, the plaintiff entered the intersection on a yellow light and thus cannot be said to have the right of way. I am also satisfied that the defendant did not have an advance green light in his favour when he was attempting to turn left. Given the timing of the light sequences, and the evidence of the two independent witnesses, it would have been impossible for the defendant to have faced a green light when he was attempting to turn left. Had the defendant faced an advance green turn signal, the witnesses would not have seen a red light for oncoming east/west traffic at the time of the collision. Next in the sequence would have been a green light for through traffic on Kingsway. Moreover, Ms. Gjerding clearly testified that the defendant’s blue van was stopped in the left turn lane waiting for the through traffic to clear. This evidence is inconsistent with the defendant having the right of way with an advance green light.

[25] Thus on the facts of this case, the competing duties described in ss. 174 and 128 of the Motor Vehicle Act are squarely in issue. The burden of proof described in Dawes is not applicable where neither of the drivers had a presumptive right of way. Instead, the Court must examine the conduct of each driver to determine if they complied with their respective duties under ss. 174 and 128 of the Motor Vehicle Act…




[27] In my view, it is apparent that the plaintiff decided to increase his speed and “run” the yellow light in contravention of s. 128 of the Motor Vehicle Act in order to avoid the red light. It was only coincidental with the light turning yellow that he saw the defendant’s vehicle. It was not the presence of the defendant’s vehicle that led to the plaintiff’s decision to increase his speed in order to avoid a collision…

[29] In this case, however, I find the defendant did not assess whether the plaintiff was an immediate hazard or not when deciding to proceed with the left turn. Instead, the defendant wrongly assumed that he had the right of way due to the presence of an advance green signal. Instead of focusing on the oncoming traffic and any potential hazards created by those drivers, the defendant concentrated on ensuring there was no cross traffic or pedestrians in the crosswalk while he turned left. He looked left, then right, then left again before he looked ahead at oncoming traffic. By this time it was too late because the collision had already occurred. In my view, the defendant neglected to take the proper steps to ensure there was no oncoming traffic before he proceeded into the left turn. In this regard, I find the facts of this case are similar to those in Shirley where Mackenzie J. (as he then was) concluded that both drivers were at fault, the oncoming driver for running a yellow light and the left turning driver for proceeding into the turn when her view of the intersection and the oncoming traffic was partly blocked.

[30] For these reasons, I find that both the plaintiff and the defendant are at fault and their respective negligence both contributed to the accident. The degree of fault does not differ significantly. The defendant proceeded into a left turn without keeping a lookout for oncoming traffic due to his mistaken assumption that he had an advance green light. The plaintiff was equally at fault for increasing his speed and attempting to travel through the intersection before the light turned red and following an established amber. Accordingly, I find the plaintiff and the defendant each 50% responsible for the accident.

Driver Found Not Negligent For Collision With Moose

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Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, dismissing a personal injury lawsuit following a 2006 collision.
In this week’s case (Racy v. Leask) the Plaintiff was a passenger in the Defendant’s vehicle.  They were driving in a remote part of BC in the early evening when the vehicle encountered two moose on the roadway.  The driver could not avoid collision resulting in injuries to the passenger.  The passenger sued for damages although the claim was dismissed with Madame Justice Ker finding that the driver was not negligent.  In reaching this conclusion the Court provided the following reasons:

[100] In this case, Ms. Leask acted immediately and appropriately upon first encountering the moose. Upon rounding the bend or corner in the road and seeing the moose, she gave a warning to Ms. Racy and at the same time applied the brakes to slow the vehicle as best she could without risking swerving in either direction. The two moose were not standing in the lane of travel but were moving toward it from the shoulder on the right hand side of the highway. The road conditions were dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated. Rather, they were caught in the range of the headlights. There is no evidence as to what the range of the headlights on high beam for this model of vehicle is in this case. Ms. Leask was driving at least 10 km/h below the posted speed limit and was in all likelihood travelling at a speed of between 85 and 90 km/h. Ms. Leask reduced her speed to take into account the driving conditions including the fact that it was dark and the possibility of encountering wildlife.

[101] Significantly, and as in Pitt Enterprises and Fajardo, there is no evidence of what speed Ms. Leask would have to have been travelling at to have been able to stop her truck once the two moose became visible to her. Nor is there any evidence as to how far the defendant’s lights would have illuminated the highway in this case, something available in the case of Pitt Enterprises.

[102] In addition, the collision in this case did not occur in an area that could be described as a “moose alley” where it is more probable than not that moose will be found. While an accident may have occurred a year before in the same general area where a driver struck a moose, there is no other evidence to suggest this is an area where it is more probable than not that moose will be found. Ms. Leask was aware there might be wildlife in the area and had adjusted her speed accordingly and was wary of the possibility.

[103] As soon as Ms. Leask saw the moose she applied her brakes, but not with enough force to completely avoid colliding with the moose. I accept her evidence that the moose were fairly close to the vehicle, within the beam of the vehicle headlights, when she first encountered them and that they continued to move from the shoulder area to the vehicle’s lane of travel. Despite her efforts to avoid a collision by applying the brakes and maintaining a straight path, instead of swerving in either direction, the collision with the moose calf could not be avoided.

[104] Considering all the circumstances in this case, I conclude that the collision with the moose was not occasioned by any negligence or want of care on the part of Ms. Leask. I find that Ms. Leask was not driving at an excessive speed given the conditions. I also find that she was not negligent in failing to apply the vehicle brakes more forcefully or in failing to take any other evasive action such as pulling or swerving to the right or the left of her lane of travel. To have done so no doubt would have resulted in much graver consequences: a head on collision with either the mother moose or the calf. The plaintiff has failed to establish on a balance of probabilities the defendant was negligent in her response to seeing the moose on the highway. Accordingly, the plaintiff’s case fails and the action must be dismissed.
For more on this topic you can click here to access my archived posts dealing with single vehicle collisions and the inevitable accident defence.

More on Registered Owner Liability and the Implied Consent Test

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As previously discussed, section 86 of the BC Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.  In other words, if you let someone drive your vehicle and they cause a collision you can be sued to pay the damages.
Usually owners admit they allowed the driver to operate the vehicle.  In these cases there is ‘express consent‘.  Where there is no express agreement the law looks into the circumstances to decide if there was ‘implied consent‘.   Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In this week’s case (Green v. Pelley) two plaintiffs sustained serious injuries when their vehicle was struck by a vehicle (owned by the Defendant McIvor) and driven by the Defendant Pelley.
The Plaintiff’s sued for damages.   There was no issue that Pelley did not have express consent to drive McIvor’s vehicle.  The Plaintiff’s alleged that there was implied consent.  Mr. Justice Saunders disagreed and dismissed the claim against the Defendant McIvor.  In doing so the Court summarized the legal principles with respect to ‘implied consent‘ as follows:





[39] The test for a finding of implied consent under s. 86, in situations where consent has been given to one person but the vehicle ends up being driven by a third party, is as set out in Hartley v. Saunders (1962), 33 D.L.R. (2d) 638 (B.C.S.C.), and in Godsman v. Peck (1997), 29 B.C.L.R. (3d) 37 (C.A.). The evidence must establish that the vehicle owner had both an expectation and willingness that a third party would drive the vehicle.  Both an expectation and willingness must be shown.  One without the other will not suffice: L’Heureux v. Eustache, 2003 BCSC 347 at para. 9.

[40] The requirement that an owner have an actual expectation of a third party driving the vehicle is relaxed, where it is clear from the circumstances that consent would have been given, if sought, as a matter of course in the particular circumstances confronting the person who is in possession by consent: dissenting judgment of Porter J.A. in Palsky v. Humphrey (1963), [1964] 41 D.L.R. (2d) 156 (Alta. S.C. (A.D.)), as approved of and adopted by the Supreme Court of Canada on appeal, [1964] S.C.R. 580 at 662…

[53] The plaintiffs urge me to take a broad view of the concept of consent in light of the legislative intent behind s. 86, which is said to be that of maximizing the availability of compensation for injured parties.  Indeed, Macdonell J. stated in the Bareham decision, at para. 27, that the only public policy reasons to be considered in interpreting s. 86:

. . . are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.  . . .

Bareham, as I have noted, is a case in which consent was found.  In Bareham, the public policy argument addresses the subject of whether the consent had been vitiated by the driver’s illegal use of the vehicle.

[54] The same public policy considerations were cited by the B.C. Court of Appeal in Morrison (Committee of) v. Cormier Vegetation Control Ltd. (1996), [1997] 28 B.C.L.R. (3d) 280 (C.A.), at para. 24, as justifying the legislation’s departure from the common law’s strict approach to vicarious liability.  These same considerations were also cited in Barreiro v. Arana, 2003 BCCA 58, as justifying the statute’s modification of the law of agency.

[55] Godsman, in which the Court of Appeal approved of and restated the “willingness and expectation” test, was decided after Morrison and Bareham.  I do not read Barreiro as having modified the Godsman test in any way.

[56] I find that there is no evidence of Mr. McIvor having consented by implication to Pelley’s operation of the vehicle.  Therefore, as I understand the issue before me, the claim of the plaintiffs against Mr. McIvor based on vicarious liability is to be dismissed.





When Servient Motorists Become Dominant

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Section 175 of the Motor Vehicle Act addresses when a motorist faced with a stop sign gains the right of way when crossing a highway.   In short, motorists faced with a stop sign can enter an intersection after stopping provided that approaching traffic is not “so close that it constitutes an immediate hazard“.  Once a motorist complies with this requirement and “proceeds with caution” into the intersection they gain the right of way and approaching traffic must yield the right of way.
Anyone who has spent any time on the road knows that this reversal of the right of way is not always honoured by motorists.  However, failure to follow section 175 of the Motor Vehicle Act can not only lead to a moving violation, but also to a significant apportionment of fault following a collision.  This was discussed in reasons for judgement released last week by the BC Court of Appeal.
In last week’s case (Lutley v. Southern) the Defendant (Appellant) was attempting to cross Oak Street in Vancouver, BC.  The Defendant was travelling on 67th Avenue.  She had a stop sign in her direction of travel.  At the intersection Oak Street had 6 lanes of travel.  The Plaintiff (Respondent) was travelling in the lane furthest away from where the Defendant entered the intersection.  As the Plaintiff approached the intersection she was faced with a flashing green light.  Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
At trial both parties were found at fault with a 60/40 split of liability in the Plaintiff’s favour.  The Defendant appealed arguing the Plaintiff should have shouldered more than 40% of the blame.  The BCCA dismissed the Appeal finding that while there was a range of acceptable outcomes in apportioning blame there was no error in law in the trial judge’s assessment.  There was, however, a strong dissent written by Mr. Justice Chiasson stating as follows:












[48] The respondent was under a positive obligation to be able to stop before entering the intersection.  She was unable to do so.   The appellant was lawfully in the intersection and entitled to the right of way.  The respondent was passing stopped vehicles on her left with clear knowledge of potential danger at the intersection.  On the evidence of the respondent and Mr. Nagy, it is apparent that the appellant had been in the intersection for some time.  The respondent gave various estimates of how long the 67th Avenue light had been green (from four to six seconds; it turned green when she was approximately three normal city blocks away; there was ample time for a pedestrian or motor vehicle to traverse the intersection). The appellant had no indication that there was a vehicle in the curb lane or that the respondent would enter the intersection in complete disregard of her statutory obligations.

[49] Lane six presented a new danger to the appellant. While in my view her speed through the intersection was not inappropriate, she testified that she did not slow down before entering lane six.  The judge rejected her evidence that she looked up the lane and he concluded both vehicles were, at that point, travelling too quickly.  Had the appellant slowed it is possible that she may have seen the respondent, although this also may have placed her into a position where the collision would have been more serious.

[50] While a dominant driver is entitled to assume servient drivers will obey the rules of the road, a dominant driver cannot act unrealistically.  It is an unfortunate reality that servient drivers like the respondent do disregard their obligations and dominant drivers cannot ignore that fact.  A dominant driver passing through an intersection who is confronted with a new risk – a seemingly empty curb lane the view of which is obstructed – must proceed with some caution.

[51] An appellate court rarely will interfere with a trial judge’s apportionment of liability (MacDonald (litigation guardian of) v. Goertz, 2009 BCCA 358, para. 58), but will do so if the judge has made a palpable and overriding error of fact, misapprehended the evidence or erred in principle.  It is an error of law not to take into account the fact a party was the dominant driver (Bedwell v. McGill, 2008 BCCA 6, para. 59) or to fail to recognize the significance of a servient driver’s negligence (Gautreau v. Hollige, 2000 BCCA 390, para. 18; quoted in Bedwell)

[52] In my view, the trial judge erred in law by failing to conclude that the appellant was lawfully in the intersection and had the right of way and in failing to address the onerous responsibility of the respondent. The respondent was passing on the right of stopped vehicles, was the servient driver and obliged to yield the right of way to the appellant and was entering an intersection with a flashing green light with the obligation to be able to stop her vehicle before entering the intersection.  I would place the majority of fault on the respondent and would apportion liability 85% against her and 15% against the appellant.













A Tale of Two Accidents: More on the Importance of Independent Witnesses

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

As previously discussed, where motorists have different versions of events following a collision the evidence of independent witnesses can be crucial in addressing the issue of fault.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Chang v. Alcuaz) the Plaintiff was involved in a two vehicle collision in 2008.  As she was travelling Eastbound on 33rd Avenue her vehicle was struck as she crossed Main Street.  The Defendant was travelling Southbound on Main Street at the time the vehicles collided.

The impact was severe with the plaintiff testifying that as she approached the intersection “she recalled that the colour of the traffic light was green” and that “she has no other recollection of the accident.  Her next memory is of waking up two days later in the hospital.”
The Defendant disputed this version and gave evidence that he had the green light.  Mr. Justice McEwan ultimately preferred the Defendant’s evidence and dismissed the Plaintiff’s claim.  In reaching this conclusion the Court placed significant weight on the evidence of two independent witnesses who saw the collision.  Mr. Justice McEwan provided the following reasons for judgement:
[28] The evidence in this case is contradictory and unreliable in many of its details.  It is often difficult, in cases of this kind, to put much reliance on estimates of time and distance given by witnesses in connection with a surprising and traumatic event…


[29] Liability comes down to two questions:

(1)  who had the benefit of the light, and

(2)  was the operator of the vehicle with the benefit of the light, nonetheless responsible to some degree, in the circumstances.

[30] Respecting the first question, there is reason to doubt the plaintiff’s assertion that she had the benefit of a green light as she now asserts.  She was unconscious following the accident and her original statement is at odds with what she presently says.  It would be difficult to accept her version of the event without corroboration.

[31] The assistance offered by the witness, Ms. Currimbhoy, is highly debatable.  She, alone, among the witnesses, suggests that the event happened in daylight.  On a common sense basis, as I have indicated, she could not be right about her proximity to the plaintiff at the time of the collision.  There is also the difficulty that none of the other witnesses saw any other vehicle proximate to the collision.  There is a further difficulty posed by Mr. Humphrey’s flatly stated observation that he saw the woman who identified herself as a co-worker pull up after the collision.  It is not conclusively established that that was the same person, but it is telling that neither Mr. Jantzen, nor Mr. Humphrey, who observed the entire incident, noted any other vehicle near the scene.

[32] The defendant, Mr. Jantzen and Mr. Humphrey all say firmly that the defendant had the benefit of the green light when he entered the intersection.  Mr. Jantzen’s impression that the defendant may have been “timing” the light is borne out in the defendant’s description of what occurred, in that he says he slowed and then accelerated when he saw the light turn green.

[33] The evidence from the City of Vancouver respecting the timing of the lights that day at that intersection is also useful.  If the light was turning, an eastbound driver had 3.5 seconds of an amber light before the change.  For 1.5 seconds traffic in all directions is governed by a red light.  This means that by the time the light turns to green, eastbound traffic, at any reasonable speed, has had a warning and ample time to stop.

[34] The scenario posted by the plaintiff that the light was green or green turning amber as she hit the intersection would imply a red light north and southbound that continued for five seconds after the defendant entered the intersection.  This would preclude any impression of the defendant “timing” the light because he would have entered fully on red.  That is not in accordance with the observation of Mr. Jantzen or of his passenger, Mr. Humphrey.  Both were credible and balanced witnesses who were not caught up in the event themselves except to witness it.  Mr. Jantzen, in particular, was paying specific attention to the light because he had been waiting for it to change.  His view was unobstructed.

[35] I am satisfied, on the basis of a consideration of all the evidence, that at the time the collision occurred the defendant had the benefit of the green light and that the plaintiff should not have been in the intersection when the collision occurred.

This case is also worth reviewing for the Court’s discussion of fault for motorists who “time a green light“.  The Plaintiff argued that if she did run a red light the Defendant was partially to blame because he timed his green light.  Mr. Justice McEwan dismissed this argument but in doing so provided a useful overview of the law at paragraphs 36-46 of the reasons for judgement.

Servient Driver Found 100% at Fault for Intersection Collision

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Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection collision.
In today’s case (Minosky v. Brar) the motorists were involved in a two vehicle collision.  They both claimed the other was at fault and both sued each other.  Both trials were heard at the same time.
The collision occurred at the intersection of 121st Street and 64th Avenue in Surrey, BC.  The Minosky vehicle was heading northbound on 121st.  He was faced with a stop sign.  The Brar vehicle was heading in the ‘fast’ eastbound through lane on 64th.  As the Minosky vehicle attempted to drive through the intersection he struck the Brar vehicle.

Madam Justice Brown found the Minosky vehicle 100% at fault for the collision for failing to yield the right of way and not complying with the duty set out in s. 175 of the Motor Vehicle Act.  In coming to this conclusion the Court provided the following useful reasons:

[8] I conclude that the Brar vehicle was much closer than Mr. Minosky believed it to be when he left the intersection.  It was an immediate hazard.  Ms. Brar was not speeding and was attending to traffic.  She had no opportunity to stop and avoid the collision.

[9] Mr. Minosky argues that, based on Ms. Brar’s estimates of speed and distance, Ms. Brar would have had ample opportunity to avoid Mr. Minosky’s vehicle if she saw him moving out from the stop sign.  Mr. Minosky argues that Ms. Brar said that she was some two to five car lengths from Mr. Minosky when she concluded that he wasn’t going to stop.  Had this been so, she would have travelled by Mr. Minosky before he had an opportunity to enter her lane of travel.

[10] This argument places too much weight on Ms. Brar’s estimates of distance.  When she first concluded that Mr. Minosky was not going to stop, it would have been an emergency situation.  She said she slammed on her brakes and honked, but was not able to avoid the collision.  In these circumstances, I do not expect that a person would be able to measure with precision the distance between her vehicle and the vehicle with which she was about to collide.  I give little weight to Ms. Brar’s estimates of distance.  Many people are poor judges of distance.  However, I do accept her evidence of how the collision happened.

[11] Section 175 of the Motor Vehicle Act places the burden on Mr. Minosky to yield to traffic that is approaching so closely that it constitutes an immediate hazard.  Mr. Minosky has not satisfied me that he yielded as required.  Rather, I have concluded that when he entered the intersection, the Brar vehicle was an immediate hazard.  I find that Mr. Minosky is 100% at fault.

Leave to Appeal In Bradley Denied; Welcome Certainty for Indivisible Injury Compensation

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In an ICBC Claim decided last year the BC Court of Appeal simplified the approach for compensation for indivisible injuries caused by multiple events.  ICBC sought to overturn this decision and recently the Supreme Court of Canada refused leave (meaning they decided not to hear the case putting an end to the appeal).  For the sake of convenience here are the Court of Appeals key reasons explaining how indivisible injuries should be treated in British Columbia:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

Affidavits and Exhibits: Take Care To Review the Whole of the Evidence

Written by admin on . Posted in BCSC Civil Rule 22, BCSC Civil Rule 9, ICBC Liability (fault) Cases, Uncategorized.


Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result.  Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident.  She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“.  The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision.  Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed.  Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.
The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits.  The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.
The Plaintiff wished to only rely on portions of the reproduced transcript.  The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit.  The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it.  Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it.  The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.

Damages Awarded in "No Impact" Motor Vehicle Incident

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


As previously discussed, given the right circumstances a lawsuit for damages following a motor vehicle incident can succeed even if there is no impact between vehicles.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this reality.
In this week’s case (Pang v. Dhalla) the Defendant made a lane change into the Plaintiff’s lane of travel.  This was done negligently forcing the Plaintiff to bring his vehicle to an abrupt stop.   The Plaintiff alleged the incident caused a disk injury although this claim was rejected.  Despite this the Court found the Plaintiff did suffer some modest soft tissue injuries due to the Defendant’s negligence and assessed non-pecuniary damages at $5,000.  In finding the Defendant liable for damages caused in a ‘no-impact’ incident Madam Justice Dillon provided the following reasons:

[7] Based upon this evidence, the plaintiff has not proven that there probably was an impact or collision between the vehicles. At best, the plaintiff hard braked to avoid an accident after the defendant turned into his lane. From the actions of the plaintiff in slowing as it became apparent that the defendant was moving her vehicle into his lane and from the evidence of the defendant, I conclude that the defendant signalled her lane change. It cannot be determined that Ms. Lee was in a position to see or not to see a signal.

[8] However, the defendant was negligent in changing lanes before ascertaining that it could be made safely without affecting the travel of another vehicle, in this case, the plaintiff’s vehicle. The defendant had to hard brake to avoid an accident. If the defendant had looked at her blind spot, she would have determined that she could not safely enter the curb lane. Her failure to do so caused the plaintiff to hard brake….

[20] In my view, the plaintiff has not proven that the braking of his vehicle to prevent an accident caused anything other than a minor exacerbation of pre-existing pain in his neck, shoulder, and lower back. Because of his failure to fully inform both doctors, their opinions about the accident causing a disc injury are seriously undermined. The minor nature of the injuries is supported by the fact that the plaintiff’s neck and shoulder symptoms resolved within a few months, the plaintiff did not take time off work, and he needed little medication. The effect on lifestyle was minimal.

[21] The defendant provided a range of damage for non-pecuniary loss of $2,500 to $5,000. The plaintiff described a range of $20,000 to $40,000. Having considered the cases provided, I conclude that an award of $5,000 is appropriate.