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$95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 53 Comments on $95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Reasons for judgement were released yesterday dealing with an appropriate award of damages for soft tissue injuries and chronic pain lasting for over 6 years.
In yesterday’s case (Gosal v. Singh) the Plaintiff was involved in 2 BC Car Crashes.  The first in 2003, the second in 2005. The first crash was a rear end collision.  Fault was admitted.  As the Plaintiff was recovering from her injuries from the first collision she was involved in the second collision.
The second crash happened when the Defendant, who was parked, pulled out in front of the Plaintiff’s lane of travel.  Fault was not admitted but Madam Justice Loo held that the defendant was 100% at fault finding that he “moved his vehicle from a parked position without first determining that he could do so safely, and that (the Plaintiff) had no opportunity to avoid the collision.”
The Plaintiff suffered from various soft tissue injuries and chronic pain which lasted for over 6 years and still bothered the Plaintiff by the time of trial.  In valuing the Plaintiff’s non-pecuniary damages (pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Loo made the following findings:

[49] Ms. Gosal suffered mild to moderate soft tissue injuries to her neck, upper back, shoulders, and mid and lower back, which caused severe headaches. She was treated with physiotherapy, massage, and chiropractic treatments, but her recovery took longer because of her depression and anxiety. She was recovering when the second accident exacerbated her injuries, including her depression and anxiety.

[50] Dr. Khunkhun states that Ms. Gosal’s long-term prognosis is guarded because her symptoms have not resolved after such a long period of time since the accidents. She does not consider Ms. Gosal to be at an increased risk of any long-term sequelae such as osteoarthritis. She believes Ms. Gosal would continue to benefit from body conditioning and strengthening exercises. She observed that in the past Ms. Gosal benefitted from regular exercise and when she stops exercising regularly, her mood deteriorates and her pain increases.

[51] Dr. Manchanda last saw Ms. Gosal on September 24, 2008. She told him that she had pain on about four or five days a week, and no pain on about two days a week. She was still looking for employment in counselling. At that time, Dr. Manchanda felt that Ms. Gosal could work in a job that was sedentary or involved light physical duties. He also felt that Ms. Gosal could complete the majority of her household chores, but that she might require a break or assistance with the heavier chores, such as vacuuming or carrying heavy laundry.

[52] Dr. Manchanda’s prognosis has thus far proved to be accurate. Ms. Gosal has worked full-time since October 6, 2008 in a job that is fairly sedentary and involves only light physical duties. There is no evidence that she has taken time off work because of symptoms arising from the accidents…

[67] I prefer Dr. Sandhu’s opinion that Ms. Gosal is not seeking secondary gains. She was looking after the household and her children’s needs as best she could, and doing her best to continue with her studies. Having observed Ms. Gosal, and on all the evidence, I conclude that she is not malingering and that her complaints of pain and depression are genuine.

[68] She continues to improve, albeit slowly. I find that there are two to three days a week when she is not in pain. Full-time employment has assisted her both physically and emotionally. Though it is now more than six years since the first accident, and more than four years since the second accident, she still suffers from depression and pain. I anticipate that over the next few years, with a regular daily exercise program, her physical pain and depression will continue to improve but may not resolve completely.

[71] I find that circumstances of Ms. Gosal’s injuries are similar to those in Foran v. Nguyen, 2006 BCSC 605, 149 A.C.W.S. (3d) 419, where the award for non-pecuniary damages was $90,000, and Jackson v. Lai, 2007 BCSC 1023, 160 A.C.W.S. (3d) 276, where the award was $100,000.

[72] I consider an award of $95,000 for non-pecuniary damages to be appropriate.

In addition to this case’s value as a precedent for valuing non-pecuniary damages for chronic pain, this case is worth reviewing for the Court’s criticism of the expert witness called by the defense.

I’ve previously written about the duty of experts to the court and highlighted judicial criticism when experts ignore this duty.  In today’s case the court made critical findings with respect to Dr. Hymie Davis, a psychiatrist who billed over $290,000 to ICBC in 2008.  Specifically Madam Justice Loo found that Dr. Davis “was presenting a case for the defence rather than providing an impartial expert opinion.  Dr. Davis’ argument that (the Plaintiff’s) injuries should have healed and that she is seeking secondary gains or malingering, is at odds with his article “The Whiplash Injury“.

ICBC Injury Claims and Effective Cross Examination

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

Reasons for judgement were released today showing how an effective cross examination of a Defendant can make all the difference in the prosecution of an ICBC Injury Claim.
In today’s case (Mclaren v. Rice) the Plaintiff was involved in a single vehicle accident in February, 2005.  The Plaintiff was a passenger.  The Defendant lost control of the vehicle and left the roadway.  The Plaintiff was injured in this collision.  There were no witnesses to the crash itself and the Plaintiff’s injuries were so severe ( a closed head injury and a fractured skull) that he had no memory of the accident.  The Defendant denied that he was at fault for losing control of the vehicle.
Just because a driver loses control of a vehicle does not automatically make him at fault for the accident.  The Plaintiff still has to prove his/her case on a ‘balance of probabilities‘.   So how then, can a plaintiff with no memory of what happened, with no witnesses and with a defendant who denies wrongdoing prove his case?  Some of the tools that can be used are pre-trial discovery and cross examination.  Today’s case demonstrates that the lawyer involved effectively used these tools to prove that the Driver was responsible for losing control.

Mr. Justice Brooke found that the Defendant driver was at fault.  In reaching this conclusion the Court highlighted serious damage done to the Defendant’s position through cross-examination.  The Plaintiff’s lawyer was able to pick apart the Defendant’s in court evidence and the effect of this was a winning case for the Plaintiff.  Following the Defendant’s cross examination Mr. Justice Brooke reached the below conclusions about his credibility:

[24] There are significant inconsistencies and contradictions between the evidence given by Jacob Rice at trial and prior unsworn statements given by him and prior evidence given under oath. It is, of course, the evidence given at trial that I must assess, and those prior inconsistent statements go to the credibility of Mr. Jacob Rice. I find that Jacob Rice is an unreliable witness and that the inconsistencies and contradictions diminish such weight as his evidence might have had. I find that the events immediately preceding the accident are not clear in Jacob Rice’s mind because he was either asleep or inattentive as the truck proceeded across the oncoming lanes of traffic. There were no brake marks or any indication that evasive action was taken until the truck “hit the ditch”. I find that what Jacob Rice told ICBC in his statement taken on March 8, 2005, is likely what happened:

It was a pull to the left and then, I just hit the ditch and as we hit the ditch, I tried pulling it to the right and it lost control and, and spinning and from there, it just lost control.

(Emphasis Added)

[25] I find that Jacob Rice failed to apply the brakes in a timely fashion and that he failed to divert the course of the truck so as to avoid the accident which occurred. Whether he fell asleep or was merely momentarily inattentive, his conduct was negligent.

BC Personal Injury Law Round Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 50 Comments on BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act. …

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

ICBC Injury Claims and Your Driving History

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

When you are involved in a suit for damages in an ICBC injury claim can you access the opposing parties driving history?  Reasons for judgement were recently brought to my attention making just such an order.
In the recent case (Rothenbusch v. Van Boeyen) the Plaintiff claimed damages against the Defendant.  Liability (fault for the car crash) was at issue.  During the examination for discovery the Plaintiff’s lawyer asked the Defendant how many speeding tickets he had.  He could not recall exactly and indicated “one or two“.   The lawyer then asked for him to produce his driving history and he refused.
In the application for production of the Defendant’s driving history Master Caldwell of the BC Supreme Court held that “(the Defendant) was unable to provide an actual firm answer (as to how many speeding tickets he had)…The defence says that the driving pattern is not particularly relevant, unlike defence requests for previous medical records and that type of thing.  She indicates that this is a highly invasive application with respect to the privacy of the Defendant, and that unlike a plaintiff who opens their life up to investigation when they commence an action, the same cannot be said of the defence.  I am not really satisfied that that is necessarily the case, particularly in a situation where liability is at issue as it is here.  I am satisfied based on the questions asked and answered  and the form of the answers contained in the discovery transcript, that this record as sought may be producible.”
Despite ordering production of this record the Court went on to note that the same may not be admissible at trial.  Specifically Master Caldwell held that “Whether or not (the driving record) is relevant and passes the test of admissibility of trial will be up to the trial judge…I will order that the Defendant provide a copy of his driving record for a period of three years prior to the …accident”.

Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

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

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.
In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.
The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.

Registered Vehicle Owners and Fault in BC – A Heavy Burden

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 86 Comments on Registered Vehicle Owners and Fault in BC – A Heavy Burden

(Please note the case discussed in this post was overturned by the BC Court of Appeal.  Please go to the September 2010 Archives of this site to read my article discussing the BC Court of Appeal decision)
The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.
What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Reasons for judgement were released today showing just how far Courts in BC can go in determining the circumstances in which an owner “consents” to someone else operating their vehicle.
In today’s case (Snow v. Friesen) the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.
The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the Court went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted “express consent” under section 86 of the BC Motor Vehicle Act.
The Court’s discussion of the law of liability of registered owners is set out below.  This case is worth reviewing in full for all vehicle owners in British Columbia as it shows the serious duties courts impose on vehicle owners when they let others take possession of their vehicles:

[68] Pursuant to the common law and s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, an owner of a vehicle is vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent, express or implied, of the owner.

[69] As is apparent from my analysis of the evidence and findings of fact, the implied consent doctrine does not arise in this case.  Instead, the issue stands to be determined on the basis of express consent.  Specifically, it is necessary to decide whether, in these circumstances, the plaintiff has proven that Ms. Friesen had the vehicle with the consent of Mr. Saul.

[70] I consider the following statement of Thackray J.A. in Barreiro v. Arana, 2003 BCCA 58, to be apposite:

[13]      Whether there was consent must be determined by reference to the facts and by the application of general legal principles viewed in the context of the statutory scheme.  The issue of consent is not, as suggested by the trial judge, “defined by s.86”: however the statute is the governing factor.

[71] The cases are replete with reference to the notion of public policy and the necessity of recognizing the legislative intent of s. 86.  Again, I will resort to a quotation from Barreiro:

[26]      The effect that legislative intent has upon the meaning of “consent” is emphasized by the words of Goldie J.A. in Morrison as quoted by the trial judge:

[24]  It is apparent the legislature has imposed a heavy burden on those who have within their power the control of motor vehicles. … The reason for legislative intervention may be traced, in part at least, to the appalling consequences of reckless use of motor vehicles.  Irresponsibility on the part of those who may deny or confer possession of motor vehicles may be seen as the reason for the legislative initiative.  The legislation in question must be regarded as remedial.

[27]      Legislative intention must be acknowledged as having a fundamental purpose and as having been inspired by a need.  As Mr. Justice Goldie said, the legislation is remedial.  As such it might well be at odds with traditional legal concepts of agency, but that will not deny its validity.

[28]      The legislative intent in section 86 must be taken, as noted by Goldie J.A. in Morrison, to address the reckless use of motor vehicles and the section imposes “a heavy burden on those who have within their power the control of motor vehicles.”  In Bareham, Mr. Justice MacDonell, after reviewing the statute, said at 194:

In this case, the only policy reasons to be considered are those in favour of protecting innocent third parties seeking compensation for injuries suffered at the hands of negligent automobile drivers and, vicariously, owners.

[72] A helpful discussion of the importance of bearing in mind the underlying rationale, or legislative purpose, of the legislation is found in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, where the matter was touched upon by Newbury J.A., writing for a five judge division of the Court, although the issue there was principally one of determining the liability of an individual who held rights under a conditional sales contract.  Nevertheless, she considered the social and economic policy objectives of the legislation, and the legislative intention.  Her analysis is found at paras. 32 through 38.  I will not reproduce the entire discussion, but consider it worthwhile to quote a portion of her conclusion as found at para. 38:

… the purposes of s. 86 are, I would suggest, similar – to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.  These objectives are consonant with the objectives of vicarious liability generally, as described by McLachlin J. (now C.J.C.) in Bazley v. Curry [1999] 2 S.C.R. 534, 62 B.C.L.R. (3d) 173, the leading Canadian case on vicarious liability.

[Emphasis added.]

[73] In my view, the outcome which must result in the facts at bar is determined by an application of the leading decision on the issue, Vancouver Motors U-Drive Ltd. v. Terry, [1942] S.C.R. 391.  There, an employee of Vancouver Motors U-Drive Ltd. had rented an automobile to a driver who had no valid licence.  The driver had falsely represented that he was another person, and showed that person’s valid driver’s licence.  He signed that person’s name to the rental agreement.  The driver was subsequently involved in an accident, and the appellant argued that it was not vicariously liable because the negligent driver had not acquired possession of the car with the appellant’s consent.  In interpreting a legislative provision similar to s. 86 of the Motor Vehicle Act, Kerwin J., for the majority, stated as follows:

In the present case, the appellant physically transferred the possession of the motor vehicle to Walker. Does the fact of Walker’s false statement that he was Hindle and the holder of a subsisting driver’s licence, accompanied by the forgery of Hindle’s name, vitiate the consent that was in fact given? There may be no difficulty in two of the hypothetical cases put in argument, (1) where a motor vehicle is stolen from a garage, and (2) where possession is obtained from the owner by duress. In the first there would be no consent in fact and in the second the owner would not have been at liberty to exercise his free will. On the other hand, the class of owners under subsection 1 of section 74A is not restricted to those who carry on such a business as the appellant and circumstances may be imagined where an owner loaned his automobile to a friend on the latter’s statement that he possessed a subsisting driver’s licence, which statement might be false either because he never had possessed such a licence or because his current licence had been revoked; or again, where A secured possession of an automobile by falsely representing himself in a telephone conversation with the owner of the vehicle to be a neighbour’s chauffeur. It is impossible to conceive all the various circumstances that might give rise to the question to be determined here but in my view an express consent is given, within the meaning of the enactment, when possession was acquired as the result of the free exercise of the owner’s will.

[74] Later, Kerwin J. reached the following conclusion:

The word “consent” may have different meanings in different statutes. In the present case it has, in my opinion, the meaning already indicated and, on that construction, express consent was given by the employees of the appellant to Walker’s possession of the motor vehicle even though the action of the employees was induced by Walker’s false statements.

[75] In this case, Mr. Saul, of his own free will, absent duress or theft, gave consent to the person who asked to use the motor vehicle.  The fact that Mr. Saul was mistaken as to the identity of that individual does not change the outcome.

[76] In Vancouver Motors U-Drive, consent was not vitiated even though the agent/employee was misled as to the identity of the person renting the car.  In Bareham (Guardian ad litem of) v. Desrochers, [1994] B.C.J. No. 1826, 97 B.C.L.R. (2d) 186 (S.C.), on an application of the same principle, the mother of the driver argued that she had not consented to her son having her vehicle because she was not aware that he had no driving licence.  The trial judge there, Macdonell J., found that once the mother gave consent, the fact that her son was driving her car illegally was irrelevant to the application of s. 86(1).

[77] The erroneous basis upon which Mr. Saul granted his consent is no defence.  The onus was on him to ensure the public safety in lending his truck.  The statute imposes a duty upon him, which duty includes knowing and assessing the fitness of the driver who seeks to have his vehicle.  The heavy burden which is imposed upon motor vehicle owners was not met.

[78] In the present case, Mr. Saul did not take steps to confirm the identity of the person who sought to use his vehicle, other than relying upon what turned out to be the assumption of Mr. Connolly.

[79] The focus of the analysis is on whether the owner gave express consent to the individual who seeks to have the vehicle.  Once that is found, as the facts of that case indicate, there is not a great deal which will impact upon the imposition of liability.

[80] While judicial interpretation of s. 86(1) may, at first glance, appear overly strict, as Paris J. stated in Beaudoin v. Enviro-Vac Systems Inc., [1992] B.C.J. No. 205, 1992 CanLII 444 (S.C.), at para. 13:

The Legislature has placed a very heavy onus on the owner of a motor vehicle who chooses to permit another to drive it. Whether that policy is or is not draconian is not for me to say.

[81] I have no doubt that the outcome here may seem harsh from the perspective of Mr. Saul.  However, holding him liable fits within the purpose of s. 86(1) and the manner in which it has been applied.  From a broader policy perspective, it fits within what has been found to be the most efficient and effective risk allocation from both an economic and public safety perspective, two elements that are central to s. 86(1).

Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases. 46 Comments on Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Reasons for judgement were released today (Wormell v. Hagel) by the BC Supreme Court, Kamloops Registry, awarding a Plaintiff just over $570,000 in total damages as a result of a 2003 injury.
The facts behind the injury are a little unusual.  The Plaintiff was standing on top of cargo on a flat bed truck.  At the same time, the Defendant was operating a crane and intended to lift the cargo.  The cargo shifted while the Plaintiff was still standing on it and in the “agony of the moment” the Plaintiff jumped off the truck to the ground which was some 12 feet below.  In jumping on the ground the Plaintiff suffered various injuries including a “crush fracture to the left ankle and a tear to the anterior cruciate ligament of his right knee“.
The Defendant was found at fault for this incident for operating the crane at a time when it was unsafe to do so.  The Plaintiff was found faultless for jumping to the ground in the “agony of the moment” and Mr. Justice Goepel did a good job summarizing this principle of law at paragraphs 35-37 stating as follows:

[35] A party who acts negligently and creates a danger carries a heavy onus if he then seeks to cast any blame for the accident on the injured party:  Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273 (C.A.) at para. 16, aff’d [1971] S.C.R. 669.

[36] The standard of care applied to individuals in emergency situations is not one of perfection. The law in such circumstances was explained in Walls v. Mussens Ltd. et al(1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A):

… I think the plaintiff is entitled to invoke the “agony of the moment” rule as an answer to the allegation of contributory negligence made against him. The rule is stated by Mr. Glanville Williams in his work Joint Torts and Contributory Negligence at p. 360-1:

It is well settled that where a sudden emergency arises through the fault of the defendant, the plaintiff who acts reasonably in an attempt to extricate himself is not guilty of contributory negligence merely because he unintentionally aggravates the situation. Also, where the plaintiff is compelled to make a quick decision in the ‘agony of the moment’ he is not expected to take into account all the considerations that a calmer appraisal of the situation might present to the mind. Perfect foresight and presence of mind are not required. This rule, sometimes called the ‘agony of the moment’ rule, is merely a particular application of the rule that the standard of care required of both plaintiff and defendant is that of a reasonable man.

The Law of Torts, 3rd ed., by J.G. Fleming contains the following statement at p. 247:

On the other hand, a person’s conduct in the face of a sudden emergency, cannot be judged from the standpoint of what would have been reasonable behaviour in the light of hind-knowledge and in a calmer atmosphere conducive to a nice evaluation of alternatives. A certain latitude is allowed when in the agony of the moment he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable conduct in such a situation, and he will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly took the wrong course.

The rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: see The “Bywell Castle” (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards,[1931] 2 D.L.R. 521, [1931] S.C.R. 167.

The test to be applied in circumstances such as those as in the case at bar is, in my opinion, not whether the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency.

[37] In this case, Mr. Hagen’s negligent act caused the emergency situation. Mr. Wormell did not have time to determine with any certainty whether the load was going to fall or stay. He had to make a quick decision in the “agony of the moment”. He chose to jump clear. As it turned out, that was the wrong decision because the load itself did not come off the truck. Matters, however, could have turned out otherwise. In deciding to jump away from the load Mr. Wormell did something an ordinary prudent man might reasonably have done under the stress of the emergency.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 Mr. Justice Goepel noted the following about his injuries and their effect on his life:

[96] Mr. Wormell’s injuries are permanent and will impact him for the rest of his life. He has undergone one surgery and will have to undergo at least one more for an ankle fusion. He also possibly faces surgery to reconstruct his ACL.

[97] In the months immediately following the accident, he was in significant pain. The March 2004 surgery reduced his pain and made his injuries more manageable. He now works steadily but seldom can do more than three or four hours of physical work. As his ankle worsens during the day, more of his weight bears on his right leg which aggravates his knee problems.

[98] If the fusion surgery is successful, he will have less pain in his ankle and will be more functional at work. The fusion will, however, cause some permanent limitations.

[99] Prior to his injuries, he was active in sports but he has not been able to return to sports in any meaningful way. This will not improve…

[105] I accept Mr. Wormell’s evidence as to why he has not undergone the fusion surgery. That surgery will leave him incapacitated for six months to a year. Given his ongoing financial obligations, he has not been able to afford to take the necessary time off to have the surgery.

[106] As is often the case, none of the cited cases involve the identical combination of injuries as that suffered by Mr. Wormell. That said, the cases cited by the defendant are closer to the mark. In particular, in this regard, I refer to the Graham and Nicoll cases which both involved serious leg injuries to men of an age similar to Mr. Wormell. I award $95,000 in non-pecuniary damages.

Pedestrian Struck on Road at Night Found 90% at Fault for Crash

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Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault in a pedestrian collision case.
In today’s case (O’Connor v. James) the Plaintiff was walking along No. 6 Road in Richmond, BC, when he was struck by the Defendants vehicle.  The Plaintiff consumed some alcohol before the collision and was struck while he was walking on the actual roadway (as opposed to the shoulder) at the time of impact.  As a consequence the Court found that the Plaintiff was in breach of various provisions of the BC Motor (Vehicle) Act.
Specifically, Mr. Justice Burnyeat made the following findings of fact with respect to this accident:
[22] It was the consensus of all witnesses that Mr. O’Connor was dressed entirely in black that night and was wearing no reflective clothing.  I also find that the approaching vehicle driven by Mr. Hockley had the low beams activated.  I also find that the street light at the corner of No. 6 Road and Triangle Road was not operating.  Taking into account all of the evidence, I find that Mr. O’Connor was on the road surface, and not on the grass median beside the southbound lane of No. 6 Road when he was hit….

[23] I accept the evidence of Ms. Journeau, Mr. Hockley, Ms. Kamayah, and Mr. James that Mr. O’Connor was in the southbound lane of No. 6 Road when he was hit by the vehicle driven by Mr. James.  I find that it would have been impossible for the collision to have occurred on the grassy median and for the vehicle driven by Mr. James to have come to rest where it did if the contact with Mr. O’Connor had been on the grassy median.  Walking where he was walking, Mr. O’Connor violated a number of provisions of the Motor (Vehicle) Act, R.S.B.C. 1996, c. 319:

179      (2)  A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

182      (1)  If there is a sidewalk that is reasonable passable on either or both sides of a highway, a pedestrian must not walk on a roadway.

(2)  If there is no sidewalk, a pedestrian walking along or on a highway must walk only on the extreme left side of the roadway or the shoulder of the highway, facing traffic approaching from the opposite direction.

[35] From the evidence, I make the following findings:  (a) the temperature that night in the area approached the freezing point; (b) the road surface was either icy or covered with dew as a result of the new-freezing atmospheric conditions; (c) the posted speed limit on No. 6 Road is 50 km/h; (d) the vehicle being driving by Mr. James was travelling at somewhere between 55 km/h and 65 km/h that night; (e) it was the intention of Mr. James to make a left turn at the intersection of No. 6 Road and Triangle Road and this intersection which would be to the left of Mr. James was being approached by Mr. James; (f) the vehicle driven by Mr. Hockley was being driven towards Mr. James and the low-beam lights of the Hockley vehicle were activated; and (g) the street light at the intersection of No. 6 Road and Triangle Road was not operative so that illumination of No. 6 Road at that point was diminished.

The court went on to find that the Pedestrian Plaintiff was 90% to blame for this collision and that the Defendant motorist was 10% to blame.  In dividing fault this way Mr. Justice Burnyeat made the following analysis:

I am satisfied that Mr. James was negligent in the operation of the vehicle which struck Mr. O’Connor.  Mr. James ignored the road conditions, visibility on No. 6 Road, the speed limits, his knowledge that there were no sidewalks, and his knowledge that there might be pedestrians.  All of these factors contributed to a need for Mr. James to drive more slowly than even the speed limit which was in effect.  Mr. James owed a duty of care to Mr. O’Connor and did not meet that duty by driving his car at the speed he was going when it hit Mr. O’Connor….

It is clear that the judgment of Mr. O’Connor was somewhat impaired by alcohol.  As well, he was dressed entirely in black without reflective clothing.  His clothing made it difficult if not impossible for drivers to see him.  Contrary to s. 182(2) of the Motor (Vehicle) Act, Mr. O’Connor was not walking facing traffic, and was not walking on the shoulder of No. 6 Road.  Mr. James has shown that the conduct of Mr. O’Connor that evening showed a want of reasonable care for his own safety and that this contributed to causing his injuries.  Mr. James has proven that Mr. O’Connor did not conduct himself in a reasonable manner so that his injuries could have been avoided or, at least, diminished.  In the circumstances, I assess liability at 90% against Mr. O’Connor and 10% against Mr. James.

Can you be at Fault for a Crash if you have the Statutory Right of Way?

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The short answer is yes and reasons for judgment were released today demonstrating this.
In today’s case (Karran v. Anderson) the Plaintiff was seriously injured when she was struck by the Defendant’s vehicle while she was jogging “against the light in a marked crosswalk“.  As a consequence of the impact the Plaintiff “was thrown fifty-seven feet in the air and landed in the south crosswalk…She suffered an occipital hematoma, a fractured left femur, a dislocated right knee…back and neck injuries as well as extensive bruises and abrasions.”
At the time of the accident the Defendant had a green light and he was not speeding.  The Plaintiff, on the other hand, was jaywalking.  Nonetheless Mr. Justice Cohen of the BC Supreme Court found that the Defendant was partially at fault for this crash.  How can this be?  The reason is the determination of fault in BC Personal Injury Claims (with the exception of intentional torts) is governed under the common law of Negligence.  A person can be found negligent even if they did not brake any statutory law during an accident.  Mr. Justice Cohen summarized this principle concisely stating that ” the authorities establish that the common law duty of care exists notwithstanding statutory rights of way and that a breach of a statutory right of way merely provides evidence in support of a finding of a negligent breach of the common law duty of care”
In today’s case the court made the following findings of fact about how the collision occurred:
I find that the plaintiff jogged across Howe Street against the light in the north crosswalk in front of vehicles that were stopped in the two middle southbound lanes; that the southbound vehicles that were stopped when the plaintiff passed in front of them had the green light; that just before the plaintiff was struck by the truck she glanced to her left looking north up Howe street in the east curb lane; that there was heavy rush hour traffic; that the east curb lane on Howe street was open to southbound traffic; that some of the westbound traffic travelling on Smithe Street had failed to clear the intersection thereby preventing other westbound vehicles from entering the intersection; that the defendant’s speed reached 50 km/h; and, that the defendant braked his vehicle just prior to the collision.
The court found that the Defendant was 25% to blame for this collision because he failed “to take any steps to avoid the accident“.  In coming to this conclusion Mr. Justice Cohen highlighted the following facts:
[65] Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident.  In my opinion, he did.  I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street…

[67]         The defendant was proceeding on a green light and thus had the right of way.  However, I find that the defendant did not keep a proper lookout.  He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street.  I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.

[68]         Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff…

[100] The defendant accelerated from the intersection at the intersection of Howe and Robson Streets to reach 50 km/h and he maintained this speed to virtually the point of impact with the plaintiff.  I agree with the plaintiff that driving at the speed limit in the east curb lane while the vehicles in the middle two lanes were stopped on a green light was not reasonable nor prudent given the traffic conditions at the intersection.

This case contains a lengthy and thorough discussion of the law regarding the duties of motorists and pedestrians in crosswalk accidents and is worth reviewing in full for anyone researching or involved in a liability case dealing with the same.

Bus Driver Found at Fault for Injuries to Passenger, $38,000 Non-Pecs for Fractured Wrist

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

In reasons for judgment published today on the BC Supreme Court website (Patoma v. Clarke) a Plaintiff was awarded $38,000 for non-pecuniary damages for injuries he sustained while on a Translink bus.
The Plaintiff was injured when he was thrown to the floor of a bus as a result of the driver’s sudden braking.  The key facts and the law surrounding this finding were summarized and applied by Madam Justice Fenlon as follows:

[2] As the defendant Mr. Clarke put his bus in motion to leave the stop, two young women, the defendants Claudia Wang and Jane Doe, who were running across the street mid-block to catch the bus, suddenly appeared in front of the bus. Mr. Clarke braked to avoid hitting the young women.

[3] As a result of the sudden braking, Mr. Patoma was thrown to the floor of the bus, and fractured his left wrist….

[6] It is clear that bus drivers owe a duty of care to their passengers based on the reasonable foreseeability test. The standard of care is the conduct or behaviour that would be expected of the reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver, and what the driver knew or should have known:  Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 (C.A.).

[7] I note that the standard to be applied to the bus driver is not one of perfection. Nor is the transit company in effect to be an insurer for any fall or mishap that occurs on a bus.

[8] The first question I must address is whether Samuel Clarke met the standard of care he owed to his passengers as he pulled his bus away from the bus stop that August night…

[27]         From Mr. Clarke’s description, I find that he was looking in his left side mirror as he took his foot off the brake, and that he permitted the bus to move albeit ever so slightly, before looking forward and without checking through his left blind spot. That is why he did not see the pedestrians, who must have been in that blind spot, as he lifted his foot from the brake and the bus started to move.

[28]         In my view, the driver either failed to check that blind spot as he started to lift his foot off the brake, or failed to sweep the area to the left of the bus far enough out to detect the two young women as he moved to check his left mirror before he pulled out. The two pedestrians were, at that time, crossing the street in some fashion from his left….

[31] In the case at bar, the driver set the bus in motion, albeit ever so slightly, without noticing two pedestrians already in the street and moving to cross in front of the bus, causing him to have to brake suddenly.

In assessing the Plaintiff’s claim for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $38,000 Madam Justice Fenlon summarized the Plaintiff’s injuries as follows:

[42]         The fracture Mr. Patoma sustained could not be set despite two attempts. He was required to undergo surgery with external pins to set bones in place. The surgery occurred eight days after the accident. The external fixator was removed on September 29, 2005, approximately five weeks after the surgery. Mr. Patoma underwent physiotherapy, beginning mid-October, attending four times and then two sessions in the months following until February 2006. He engaged in daily exercises to strengthen his wrist.

[43]         I find Mr. Patoma worked hard at his rehabilitation. By 2007, about two years after the accident, he was fully recovered except for occasional cramping or tightness in the muscles of his left hand. It is unlikely that Mr. Patoma will develop arthritis in his wrist or need further surgery, according to the medical report of Dr. Perry.

[44]         During the healing process, Mr. Patoma could not garden during part of 2006. He is an avid tennis player, and he could not play tennis or badminton in the fall of 2005. But the biggest impact by far of the injury was on Mr. Patoma’s ability to play the bagpipes. He told the court that he engaged in competitions in his youth. At one point, he took lessons from the personal piper to Queen Elizabeth. He said that classical Highland piping requires considerable dexterity in the fingers.

[45]         There was evidence that playing the bagpipes was an important part of Mr. Patoma’s daily life. He is a bachelor and lives alone, and he said that he played in the morning and the evening, and it brought him great comfort. It was a cause of real concern that his fingers were too stiff for him to play without slurring, and for him to play with the kind of skill and at the level he was accustomed to. He said that, when he found he could not play, he was gripped by worry and anxiety.

[46]         Mr. Patoma happily reported at trial that, by 2007, he had made a “terrific recovery”. He said that at 71, he still has the dexterity in his fingers that he had as a teenager….

[48] I find that an appropriate quantum of damages to compensate Mr. Patoma for his pain and suffering and temporary loss of enjoyment of life is $38,000.