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Stationary Vehicle Partly At Fault for Rear End Crash For Failing to Engage Hazard Lights

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Last week the BC Court of Appeal addressed fault for a crash between an impaired driver and a stationary vehicle.  In last week’s case (Hansen v. Sulyma)  the stationary vehicle had run out of gas and pulled off the roadway.   Shortly thereafter another motorist, who had been drinking in excess at a nearby pub, lost control and drove into the stationary vehicle.  While the Court found the impaired driver mostly at fault the driver of the stationary vehicle was also found party to blame.  In reaching this conclusion the BC Court of Appeal provided the following reasons:
[5]             When the Honda was a couple of kilometres away from the terminal, its engine “spluttered” and then stopped.  Mr. Sulyma steered it off the paved portion of the road and onto the shoulder.  He testified that they were stopped on a straight stretch.  He telephoned one of his sisters who lived on the Island and she agreed to bring gas to where the Honda was stranded.  Ms. Hansen phoned home to tell her son that she and Mr. Sulyma would not be back to Powell River until the next day.
[6]             While they were stopped, Ms. Hansen testified that she asked Mr. Sulyma to put on the car’s “flashers” or hazard lights, but he told her that was “silly”.  The lights were left off.  After a few minutes, Mr. Sulyma tried the ignition again and the car started.  He pulled out onto the road and they were able to drive a short distance, but the engine then spluttered and died again.  The trial judge accepted the testimony of both Mr. Sulyma and Ms. Hansen that he steered the vehicle onto the shoulder such that it was parked “entirely on the shoulder of the road, and no part of the vehicle was located on the paved portion of the roadway.”  (Para. 31.)  Although parts of Mr. Leprieur’s statements to the police were to the contrary, other portions of his statements led the trial judge to infer that he had had no memory of where the Honda had been parked.  The trial judge found that the car was “at what counsel have referred to as the ‘apex’ or middle point of a left-turning (for northbound traffic) curve in the highway.”  (Para. 35.)..
[17]         With respect to Mr. Sulyma, the trial judge was satisfied he had failed to meet the applicable standard of care by failing to activate the hazard lights on Ms. Hansen’s vehicle or otherwise illuminating lights that would have made the Honda more easily noticeable to drivers.  As for causation, the Court found this failure “caused or contributed to the collision” and that had the lights been on, Mr. Leprieur would likely have been alerted to the presence of the Honda earlier than he was.  The trial Judge continued:
… Even if Mr. Leprieur’s ability to react was slowed by the excessive amount of alcohol he had consumed and he was being inattentive, flashing lights would probably have caught his attention before the vehicle itself became visible.  An earlier warning of the presence of the Hansen vehicle would, I conclude, have allowed Mr. Leprieur time to stop accelerating or possibly even slow his vehicle, and thereby reduce the force of the impact and the severity of Ms. Hansen’s injuries.  [At para. 78; emphasis added.]

 …
[30]         Moving on to the question of standard of care, Ms. Wright contends that the standard imposed by the trial judge on Mr. Sulyma was “too high in law”.  She emphasizes that the Hansen car was parked off the paved portion of the road.  Can it be correct, she asks, to require a person in Mr. Sulyma’s position to have activated the hazard lights in order to avoid the risk posed by a driver who is drunk, speeding, and accelerating on a trajectory off onto the shoulder?  Ms. Wright observes that this is the first case of which she is aware in which the driver of a vehicle that is parked completely off the road has been held to be negligent for failing to put on his or her hazard lights.
[31]         Mr. Cowper responds ? correctly in my view ? that Ms. Wright’s objections are to the trial judge’s findings of fact rather than to any legal principle she applied.  The question in every case is whether the person has taken reasonable care in all the circumstances.  There is no rule of law to the effect that any driver who parks his car off the road may rest assured that he or she need not activate the vehicle’s hazard lights.  It all depends on the circumstances.  In this case, although the Honda was off the road, it was a dark and misty (if not foggy) night, the road was not illuminated, the car was in the apex of a curve, and Mr. Sulyma and Ms. Hansen were sitting in the vehicle.  As the Court stated in Thornhill v. Martineau (1987) 39 C.C.L.T 293 (B.C.S.C.), even though a vehicle is legally parked, it may create a danger which ought to be foreseen by its driver.
[32]         The trial judge in the case at bar implicitly concluded that it was reasonably foreseeable that a driver coming around the curve would swing wide ? a conclusion of fact that in my view has not been shown to be clearly wrong.  (It was not necessary in this regard to show that Mr. Sulyma ought to have foreseen that an intoxicated driver would speed around the curve.)  I note that this case is substantially different from that inCawson v. Quandt 2001 BCCA 210, where this court reversed a trial judge’s finding that a driver who had encountered deer on the road and, while remaining in the lane of traffic, had stopped his truck to let them cross, had been negligent in failing to turn on his hazard lights.  The trial judge had imposed 15% liability on the defendant for this reason, but the Court of Appeal allowed his appeal on the basis that the trial judge had imposed “an unreasonable standard imposing almost a warranty upon the defendant.”  (Para. 4.)  For purposes of the case at bar, it is important to note that the defendant in Cawson had his headlights and running lights on at all times (see para. 49 of the trial judge’s reasons; [1999] B.C.J. No. 1341).
[33]         In my opinion, this ground of appeal must fail.

What TJ Grant Can Teach Us About Mild Traumatic Brain Injury

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Last year I discussed why Sidney Crosby’s concussion is the best thing that happened for mild trauatic brain injury victims.  Last week Canadian Mixed Martial Arts fighter TJ Grant has provided us with an equally teachable moment.  In short he has demonstrated that concussions are serious injuries and need to be treated with respect.
TJ Grant was scheduled to fight for the UFC’s lightweight title.  An opportunity that will take him from relative obscurity into the public spotlight.  This is one of the greatest opportunities that  a professional combat sports athlete can have.   To the surprise of many he stepped down from this opportunity .  This, despite not being guaranteed another shot at the title by UFC brass.  The reason, a concussive injury sustained in practice with lingering post concussive symptoms.
TJ Grant provided a lengthy interview to MMA reporter Ariel Helwani and this is worth listening to in full to help gain some appreciation to the ‘invisible’ aspect of traumatic brain injury, the invasive symptoms TBI can cause and the minor exertions that can create significant set backs in recovery.
As discussed at the Canadian MMA Law Blog , it is now well understood that combat athletes often sustain some of the worst trauma through training, not only by being exposed to possible concussions but through the accumulation of multiple sub concussive blows.  TJ Grant should be commended not only for his personal decision in putting proper recovery first, but for being an example to all combat sport participants that brain health should not be sacrificed, even in the face of possible fame and fortune.

BC Court of Appeal Finds Pub 20% At Fault for Overserving Patron Who Caused a Vehicle Collision

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Adding this site’s archived cases addressing commercial host liability, reasons for judgement were released this week by the BC Court of Appeal addressing the blameworthiness of a pub who overserved a patron who then drove drunk and caused a catastrophic collision.
In this week’s case (Hansen v. Sulyma) the Plaintiff was a passenger in a vehicle that ran out of gas and was parked off the side of the road.  At the same time the Defendant, who had been drinking excessively at a nearby pub, “approached from behind, swung wide and hit their car.”  The crash had catastrophic results rendering the Plaintiff quadriplegic.
The motorist was found largely responsible for the crash but the BC Court of Appeal also allocated 20% of the blame to the pub.  In addressing their blameworthiness for over serving a patron the Court provided the following reasons:
[1]             …Mr. Leprieur had spent the evening drinking at a nearby pub and was highly intoxicated.  Employees at the pub had not made any effort to cut off his liquor or to see that he did not get into a motor-vehicle when he left the pub…
[10]         The vehicle that struck the Hansen car was a Ford Explorer being driven by Mr. Leprieur.  He had taken the ferry to Texada Island on the afternoon of November 29 to “hang out” and play some pool at the pub.  After the ferry docked at 4:00 p.m., he went to the pub, arriving between 4:30 and 5:00, and stayed until about 9:45.  There, he ran up a tab in excess of $100 (including some drinks purchased for others).  The trial judge found that he had likely consumed at least six rye whiskeys mixed with water, each consisting of not less than two ounces of alcohol.  The drinks were first served by Ms. Ricki James, the sole bartender on duty when Mr. Leprieur arrived.  She went off duty at 7:00 p.m., when the defendant Ms. Morris took over, again as the sole bartender and server.  Both are employed by the defendant numbered company of which the defendant Mr. de Vita is president and an employee.  He was not present on November 29.
[11]         When Ms. James went off duty, she did not tell Ms. Morris how long Mr. Leprieur had been drinking and Ms. Morris did not ask.  She did note there were three or four double ryes on Mr. Leprieur’s tab.  Ms. James observed that Mr. Leprieur was “fine” when she went off shift, but also said he was “catching a little buzz on”.  Ms. Morris served Mr. Leprieur three more ryes, throwing out the remnants of the third after he left the pub at about 9:45 p.m.  The trial judge continued:
The pub was busy and Ms. Morris did not pay much attention to Mr. Leprieur, but she did not observe him showing signs of being “an extremely drunk person, such as falling down or slurring his words”.  However, a patron in the pub offered to pay for a room at the Texada Island Inn for Mr. Leprieur, from which I infer that others were able to observe signs of impairment.
Mr. Leprieur got into his Ford Explorer and headed north on Blubber Bay Road intending to catch the last ferry.  When interviewed by Constable Rogers, he seemed vague about the departure time for that ferry, but I am satisfied that Mr. Leprieur probably knew that he had left himself very little time to get to the ferry terminal, and that he was likely driving in excess of the posted speed limit.
Ms. Hansen’s testimony about the sounds made by Mr. Leprieur’s vehicle as it approached and the extent of the damage to the two vehicles indicates that Mr. Leprieur’s vehicle was travelling at a high rate of speed when the impact occurred.  The right front of by Mr. Leprieur’s Ford Explorer struck the rear left side of the Accord.  The damage to the front of the Explorer indicates more than half of the front of that vehicle came into contact with the Accord, and although the damage to the rear of the Accord is worse on the left side than the right, the entire back of that vehicle is destroyed. [At paras. 51-3.]
[12]         The RCMP officer who attended the accident recorded that Mr. Leprieur had glassy eyes, was unsteady and smelled of alcohol.  Mr. Leprieur provided a breath sample at 1:26 a.m. which indicated a blood alcohol level of .12.  According to the blood alcohol consultant that level would have been between .147 and .167 at the time of the collision.
[36]         The law is clear, of course, that this court may not interfere with a trial judge’s apportionment of liability under the Negligence Act, R.S.B.C. 1996, c. 333, unless there are “very strong and cogent reasons” for doing so: see Moses v. Kim 2009 BCCA 82 at para. 33.  Even given this stringent standard, however, I am persuaded that the allocation of minimal responsibility to the pub defendants was grossly disproportionate to their comparative blameworthiness, including their disregard of their statutory obligations.  We were referred to various cases involving host liability to injured third parties, including Menow v. Honsberger [1974] S.C.R. 239 (S.C.C.) and Laface v. McWilliams 2005 BCSC 291. In Laface, Kirkpatrick J. (as she then was) in turn quoted at para. 187 a passage from a judgment of Mackenzie J. in Lum (Guardian ad litem of) v. McLintock (1997) 45 B.C.L.R. (3d) 303 (B.C.S.C.), where she stated:
In pragmatic terms, responsibility placed on commercial hosts is likely to be most effective as a deterrent in keeping intoxicated drivers off the roads. The cost of damage awards should modify rational conduct of commercial hosts directed to maximizing economic advantage … [At para. 27.]
In all the cases of commercial host liability to which Ms. Wright referred us, liability of between 78% and 28.5% was apportioned to defendants in the position of the pub defendants in this instance.
[37]         Notably, counsel for Mr. Sulyma made no submission at trial as to what portion of blameworthiness should be allocated to these defendants.  The plaintiff submitted that the figure should be 5% and the trial judge simply adopted that submission, apparently without considering the precedents in this province that augur in favour of a considerably higher apportionment.  Moreover, the trial judge’s suggestion that she would have allocated 75% of the liability to Mr. Leprieur if only two parties had been involved, and her effectively “crediting” him with the 5% seems illogical, with all due respect.   The proper course was for the trial judge to consider the relative fault of all three parties (assuming, as counsel agreed, that the pub defendants could be treated as one for the purposes of this determination) and to determine the relative blameworthiness of each in comparison to the others.
[38]         I would allow the appeal on this point and re-apportion 20% of the liability to the pub defendants, 70% to Mr. Leprieur, and 10% to Mr. Sulyma.

Aggravated Assault Causing Orbital Fracture Leads to $50,000 Non-Pecuniary Assessment

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In an expensive lesson that problems should not be solved with violence, reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, assessing damages for a facial fracture caused by an assault.
In this week’s case (Plishka-Humphreys v. Bolen) the Plaintiff was walking with friends by a highway when “unbeknownst to him his friend Arnie van der Holt took a slingshot and ball bearing and shot it at a vehicle which was owned and driven by the defendant Bolen.“.  The Defendant chased the Plaintiff and his friend into the woods and “hit him in the face with considerable force. He fell down. He repeatedly was struck in the head and face. He was in and out of consciousness and was in shock.”
The Plaintiff suffered an orbital fracture and ultimately required surgery.  He was left with permanent issues including occasional double vision. In addition to being criminally convicted of aggravated assault, the Defendant was found civilly liable and ordered to pay damages.  In assessing non-pecuniary loss at $50,000 Mr. Justice Cole provided the following reasons:
[20]         I am satisfied that the plaintiff received permanent injury to his eye because of his double vision. He is also at risk of developing glycoma and he suffers from anxiety and thoughts of suicide. He is now more vulnerable to further exacerbation of his post-traumatic stress disorder. He has lost a tooth in what was a traumatic violent assault.
[21]         The range of damages, according to the plaintiff, is (figure is adjusted for inflation) between $24,000 in Springett v. Shanklin, 2001 BCSC 853 and $53,700 in Minet v. Kossler, 2007 YKSC 30.
[22]         Considering and weighing all the evidence, the trauma that the plaintiff experienced, the permanent damage to his eye which causes him to suffer on occasion from double vision and is suffering from Post-Traumatic Stress Disorder (“PTSD”) and is at an increased risk of anxiety and depresic disorder, I am satisfied that an appropriate award including aggravated damages is the sum of $50,000.

Driver Fully At Fault For Striking Pedestrian Standing on Street Side of her Vehicle

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision when a motorist lost control in winter driving conditions.
In this week’s case (Lee v. Phan) the Plaintiff was struck by the Defendant’s vehicle as she was standing on the street side of her own vehicle.  The Plaintiff was retrieving groceries from her car and had to walk around the street side of her vehicle as there was a snow bank preventing her from walking to the sidewalk past the rear of her vehicle.  At the same time the Defendant was driving and was concerned the Plaintiff was going to jaywalk in front of his vehicle.   He hit his brakes and ended up steering into the plaintiff.  The Court found the Plaintiff was not about to jaywalk and the Defendant’s actions were negligent. In assessing fault fully with the Defendant Mr. Justice Blok provided the following reasons:
[50]         I find that Ms. Lee did not attempt to jaywalk across Renfrew Street, nor did she intend to do so.  There was no evidence to support this other than Mr. Phan’s impression that this is what “the shadow” seemed to be about to do.  I conclude that Mr. Phan’s impression was an erroneous one…
[56]         Both parties cited a number of cases involving collisions with pedestrians at crosswalks or collisions where wintery conditions were a significant factor.  In view of my finding that Ms. Lee made no attempt to cross Renfrew Street I do not find the crosswalk or jaywalking cases to be particularly helpful.  The winter driving cases establish little more than the general proposition that drivers should adjust their driving and use caution appropriate to the conditions…
[64]         Mr. Phan testified that he turned his vehicle into the snowbank because he felt this was his only option given his conclusion that Ms. Lee was about to jaywalk in front of him.  This, I have found, was an erroneous conclusion.  Had he continued straight ahead there would have been no collision.  Mr. Phan also seems to have been under the impression that one should never apply the brakes of a vehicle in icy conditions.  This is obviously wrong, as the appropriate response is to apply cyclical braking, as confirmed by the plaintiff’s engineer, Mr. Rempel.  For all of these reasons I conclude that Mr. Phan was negligent.
[65]         As for Ms. Lee, I am unable to accept the defendant’s suggestion that she ought to be found to be contributorily negligent.  She was not in a place that posed a hazard or obstruction to traffic, she was wearing a white coat and she was facing in the correct direction towards oncoming traffic.  The defendant has not established that Ms. Lee had any realistic opportunity to get out of the way.  I see no negligence on her part.
 

Plaintiff's "Strong and Stubborn" Evidence Undermines Traumatic Brain Injury Claim

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Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing Plaintiff reliability in the context of an alleged traumatic brain injury claim.
In this week’s case (Harris v. Xu) the Plaintiff sustained various injured in a 2008 collision.  The Defendant admitted fault but disputed the nature and severity of the Plaintiff’s claimed injuries.  One of the injuries the Plaintiff allegedly sustained was a closed head injury.  Madam Justice Adair rejected this aspect of the Plaintiff’s claim noting some difficulties with the Plaintiff’s evidence regarding her injuries.  In dismissing the brain injury claim the Court provided the following reasons:
[83]         I do not doubt Ms. Harris’s honesty.  However, in giving her evidence, Ms. Harris demonstrated a strong and stubborn tendency to attribute almost every problem and every difficulty in her life to the accident.  In my view, this dictated caution before accepting Ms. Harris’s version of events, because her version is coloured by Ms. Harris’s firm belief that the accident – and the accident alone – is responsible for her current circumstances.  I have concluded that Ms. Harris is deeply frustrated by those circumstances and, in her own mind, is trying to impose some logic on past events.  This approach to her life is consistent with how her long-time friend Ms. Baird described Ms. Harris’s personality.  But what I needed from Ms. Harris were the facts, not Ms. Harris’s reconstruction of, and her conclusions about, what she believes happened, based on what, in hindsight, she now thinks makes sense.
[84]         The question of whether Ms. Harris suffered a closed head injury in the accident illustrates the problem.  At trial, Ms. Harris insisted that she was “knocked out cold.”  She gave this evidence, using those words, several times.  She communicated this to Dr. McCloskey when she saw him for the first time on April 17, 2008.  She later reported to Dr. McCloskey that she had been unconscious for minutes.  This was then further particularized as five minutes.  She gave a similar history to Dr. Coghlan, and it is the basis for his opinion concerning a closed head injury.  
[85]         However, there is no independent evidence to corroborate what Ms. Harris firmly believes.  If Ms. Harris was in fact “knocked out cold,” I do not know how Ms. Harris could possibly know that it was for five minutes.  Her memory (based on what she told Dr. McCloskey) seems to become more exaggerated with the passage of time.
[86]         At trial, Ms. Harris very strongly and firmly rejected what appeared in the Royal Columbian Hospital emergency clinical record, that she had reported no loss of consciousness.  However, in my view, her detailed evidence concerning events at the accident scene and of her activities after leaving the hospital (collecting luggage, renting a car, and so on) on the day of the accident, are inconsistent with her having sustained any significant head injury or concussion in the accident.  Ms. Harris’s activities are consistent with her accepting what she says she was told at the hospital – that she was “good to go” – and (apart from her painful ribs) agreeing with it.  Ms. Harris did not tell Dr. McCloskey about what she did after the accident, or that she drove with her mother back to Kelowna the following day.  As a result, he did not have all of the facts when he made his assessment concerning this particular injury.  Dr. Coghlan’s opinion concerning a closed head injury is based on Ms. Harris’s history of “significant post-traumatic amnesia,” but he did not have all of the facts either.  I cannot place much weight on either opinion on this point.  There might be an explanation for why Ms. Harris was able to carry on the way she did after the accident and the following day, despite sustaining a closed head injury or concussion.  But, because neither Dr. McCloskey nor Dr. Coghlan had all the facts, neither of them was in a position to provide one to me…
[100]     I am not persuaded that Ms. Harris suffered a mild closed head injury in the accident.  In my view, the evidence in this respect is too equivocal for me to reach a conclusion that Ms. Harris has proved, on a balance of probabilities, she suffered such an injury in the accident.  Even if she did, I accept Dr. Coghlan’s opinion that whatever happened will not result in any long-term problems. 

Contingency Fee Agreement Not Explained by Lawyer "Flawed From the Moment It Was Signed"

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, striking down a contingency fee agreement because it was not reviewed with the client by a lawyer.
In this week’s case (Klein Lyons v. Aduna) the client was involved in a 2005 collision and retained a law firm  to represent him.  His case eventually settled and the lawfirm charged $75,000 in fees under their contingency fee agreement.  A fee dispute arose and Registrar Sainty ultimately struck down the fee agreement as being flawed since it was not reviewed with the client by a lawyer in the firm.  In reaching this decision the Court provided the following reasons:
[35]         In my opinion, the CFA was flawed from the moment Mr. Aduna signed it as he signed it without the benefit of speaking to a lawyer at the law firm. In not having a lawyer review the CFA with Mr. Aduna, it may be said that the solicitors took unfair advantage of Mr. Aduna, although I do not find that any advantage so taken was taken deliberately or was designed to defeat the client’s objectives. Further, I am of the view that the fact that no lawyer met with Mr. Aduna to review the CFA, explain its terms to him and provide him with some advice as to how the law firm’s fees would be calculated, produced a serious flaw in the formation of the CFA and a mistake was made at the time it was signed. As such, the CFA must fail…
 [40]         While it was not required that the solicitors advise Mr. Aduna that he ought to get independent legal advice before entering into the CFA, they ought to have advised him “fully and fairly concerning the terms of that contract” (per Roberts & Muir (Re),supra), something they did not do. As the solicitors were entering into a bargain with the client (to pay them a fee based on a percentage of the recovery), they had a duty to ensure that the terms of the CFA were explained to Mr. Aduna by a lawyer. It was not sufficient that there was a lawyer on “stand-by” to be called into the room to discuss the CFA with Mr. Aduna if he had questions about it. 
[41]         While I have found that Mr. Aduna did not lack capacity to contract with the law firm, he was still under some duress, taking medication and in not insignificant pain when he met with Mr. Petrovic. It was even more pressing then that the solicitors ensure that Mr. Aduna fully grasped the consequences of the retainer agreement and took no unfair advantage given his distress; particularly since the consideration of the fairness of such an agreement, if reviewed by a registrar, is undertaken given the circumstances existing at the time the retainer agreement is made.
[42]         In my view, this is of even more import when the contract between a lawyer and his client is for a fee based on a contingency, a percentage of the recovery.  In Anderson v. Elliott (1998), 60 B.C.L.R. (3d) 131 (S.C.), Sigurdson J. explained the nature of contingent fee agreements, at para. 67:
        Under a contingent fee agreement, the lawyer and the client enter a type of joint venture where they will either share in the fruits of the action or suffer the defeat together. Normally, I would expect that it is not a joint venture of equals, in that the law firm, generally, has a more thorough understanding of the law, the legal process and the potential outcomes of litigation than the client.
[43]         Accordingly, I find that the CFA was unfair at the time it was entered into. What, then, is the consequence of that decision?
[44]         The Act provides:
68(6)    If the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into, the registrar may modify or cancel the agreement.
[45]         I believe I must cancel the CFA as there is no modification of it that would render the CFA fair.

Privileged Report Detrimental To Plaintiff's Claim Declared Reasonable Disbursement

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Just because a medico-legal report proves harmful to a Plaintiff’s claim does not make the costs of obtaining the report, in and of itself, an unreasonable disbursement.  Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, demonstrating this.
In last week’s case (White v. Reich) the Plaintiff was injured in a 2008 collision.  He sustained a chronic knee injury which impacted his ability to work.  The Plaintiff had a history series of heart problems which also impacted his choice of working in remote locations.   His treating cardiologist did not wish to be involved in litigation and the Plaintiff retained an independent physician to address this issue.  Ultimately the independent physician provided an opinion which was detrimental to the Plaintiff’s litigation interests indicating “that the heart condition was in no way related to the motor vehicle accident and that in any event, if the plaintiff were to follow a regime of rehabilitation and medication he could seriously reduce the risk of further heart problems.  In short, the evidence established that with proper actions, there was no physical reason for the plaintiff not to return to his Northern Alberta position.”
The Plaintiff claimed privilege over this report and it was not exchanged with defence counsel.  The matter settled prior to trial.   The Defendant argued the disbursement associated with this report was unreasonable.  Master Caldwell disagreed finding simply because the report was ultimately unhelpful to the Plaintiff’s claim the decision to explore the issue was reasonable.  In allowing the disbursement the Court provided the following reasons:
[19]         The applicable legal principles were canvassed and summarized recently by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at para. 5.  In particular it is noted that the test is not one of hindsight and that a proper disbursement may be one which is ultimately not necessary but which was reasonably incurred for the purposes of the proceeding.
[20]         In this regard, counsel for the defendant acknowledged that if the report had determined that the most recent heart problems had been caused by or contributed to by the accident and that that was the cause of the plaintiff’s being unable to return to work, there would be no question that the report was not only reasonable and proper but in fact necessary to the proper conduct of the litigation.
[21]         In all of the circumstances, I am of the view that the course of investigation with Dr. Isserow, which culminated in and included his report, was reasonable and proper at the time that it was undertaken and accordingly the disbursements which relate to Dr. Isserow are allowed as presented.

The Dry Judgement Blues – Knowledge of lack of Registered Owner Consent

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Knowingly riding in a vehicle involved in a collision where the at fault driver does not have the owner’s consent can lead to legal headaches when it comes to being compensated for injuries.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with such a potential scenario.
In this week’s case (Schoenhalz v. Reeves) the Plaintiff was badly injured while riding as a passenger in a vehicle involved in a 2007 collision.  The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture.  Damages of $282,992 were assessed.
The driver of the vehicle was found to be at fault.  The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner.  Accordingly the lawsuit against the vehicle owner was dismissed.    The driver was 15 years of age at the time and did not have a license.  The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.
Why does this matter?  While this judgement did not get into collections issues such a finding could be problematic.
Typically a 15 year old uninsured motorist would have no means to satisfy a quarter million dollar judgement.  This leaves the issue of insurance.  In ‘no consent‘ situations ICBC treats the collision as uninsured leaving an injured plaintiff with only the ability to collect damages under either section 20 of the Insurance (Vehicle) Act or under their own Underinsured Motorist Protection plan (UMP).
While the above insurace plans often are valuable in satisfying an uninsured judgement, there are exceptions as to who can access these.  One such exclusion deals with knowingly being in a vehicle without driver consent.  A Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”
A similar exclusion exists if a Plaintiff seeks to access their own UMP coverage.  Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.”
When seeking to collect the judgement from ICBC such a judicial finding may cause ICBC to deny payment on the basis that a person “ought to know” that an owner likely is not providing consent to an unlicensed individual operating the vehicle.  This area of law has received scarce judicial commentary but these coverage exclusions should serve as a stark reminder to individuals considering taking a ride with an unlicensed driver.
 

Insufficient Reasons Lead To Retrial Of Diminished Earning Capacity Award

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

Update May 27, 2014 – After reassessment the trial judge assessed damages at the original amount
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Reasons for judgement were released last week by the BC Court of Appeal sending a case for re-trial after a judge failed to adequately explain how substantial damages for diminished earning capacity were assessed.
In the recent case (Morgan v. Galbraith) the Plaintiff was injured in a 2006 collision. He worked as a senior account manager at the Royal Bank of Canada at the time.  Following the crash he returned to this job with accommodation until his contract expired.  From there he never returned to work at the bank instead he pursued a career in professional lacrosse.  This chapter of his life ended with a concussion suffered in 2011.  By the time of trial he was working as a basketball and lacrosse coach.
At trial it was found that the Plaintiff suffered from ongoing injuries from the collision.  His diminished earning capacity was assessed at $700,000.  The BC Court of Appeal found that the reasons supporting such an assessment were lacking from the trial judgement and the matter was sent back to trial for reassessment of this loss.  In doing so the BC Court of Appeal provided the following reasons:
[54]         The economic evidence relied on by Mr. Morgan quantified lifetime earnings of a sport coach in Oregon at $883,004.  The judge did not explain the basis of his $700,000 assessment.  This amount approximates 80% of lifetime earnings of a coach, notwithstanding that Mr. Morgan is now employed as a coach.  I do not mean to imply that the assessment must be a mathematical calculation.  Rather, my point is that there must be findings of fact on which to base the assessment.  Here, the reasons for judgment on this point are not sufficient to permit appellate review.  The judge gave no hint as to the factual basis on which he reached the conclusion that on these facts $700,000 was an appropriate measure of Mr. Morgan’s future damages.  The judge did compare this case to another similar case, but, in my view, that would not be an appropriate way to assess what is essentially a pecuniary damage award.  I do not consider that it is appropriate for this Court to infer from the judge’s reasons the necessary findings of fact in order to substitute a different award or to affirm the correctness of the award. 
[55]         The judge could well have chosen the earnings approach given that Mr. Morgan was likely to pursue a career in sport regardless of the accident and that doing so after the accident was possible but with limitations.  The judge made no findings concerning the extent of those limitations.  As I have concluded that the appropriate disposition of this appeal is to remit the question of the assessment of damages for future loss of earning capacity to the judge, I will leave to the trial judge the question of the appropriate approach to adopt.  To reiterate, I agree with Mr. Morgan that on a proper evidentiary basis the judge has already found that there is a loss of future earning capacity under the Perren test.  He need not reconsider that finding.  But it will be necessary for him to revisit the assessment on a proper factual underpinning.
[56]         If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income.  Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.
[57]         In conclusion, on this ground of appeal, I would remit the question of the quantification of future loss of earning capacity to the trial judge to reassess damages in accordance with these reasons.