If you are looking for a quick introduction to concussive injuries (or if you need a great aid for explaining concussions to others), this video by Dr. Mike Evans is about as good as it gets. I first found this while searching the Sport Concussion Library, a great free resource for parents, athletes, coaches and anyone else interested in concussions in sports.
I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials. In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Two sets of reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.
In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries. ICBC sought to deduct mandatory and discretionary Part 7 benefits from this amount. In discussing the burden required for these deductions and in denying the application Mr. Justice Smith provided the following reasons:
3] The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: “I expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses”.
[14] The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.
[15] Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life…
[18] At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.
[19] Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.
In the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial. ICBC sought to deduct some $16,000 in Part 7 items. In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:
[24] In her affidavit, the adjuster says that such a fitness program is “similar to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to “physical therapy”, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be “similar” to the named therapies.
[25] Having regard to the requirement for strict compliance with the Act and its Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from “the corporation’s medical advisor” is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.
As highlighted earlier this year, a motorist can be found negligent for injuries caused to a passenger even in the absence of a collision. If a motorist makes an abrupt movement causing injuries to occupants liability can follow if the abrupt movement falls below the expected standard of care. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an incident.
In last week’s case (Erickson v. Sibble) the Plaintiff was riding as a passenger in the Defendant’s bus. As he approached an intersection he brought his vehicle to an abrupt stop to avoid running a red light. The sudden breaking caused injuries to the Plaintiff. In finding the bus driver negligent and liable for the injuries sustained in this ‘no-impact’ incident Madam Justice Ballance provided the following reasons:
[62] I have found that Mr. Sibble made the following oral and written statements:
· he apologized to Ms. Erickson and Ms. da Silva for the manner of the stop and declared that he did not want to get a “red light” ticket;
· he told Ms. Erickson that he had applied the “emergency brake”, by which he was referring to the maxi-break, at the time of the stop;
· the statements that Mr. Pearson captured in his incident report and those that Mr. Pearson testified about, as detailed above; and
· that he had stopped “a little harder than normal”, as recorded in his incident report.
[63] Mr. Sibble’s statements constitute admissions and are admissible against him, either as admissions against interest or as an exception to the hearsay rule: R. v. Evans, [1993] 3 S.C.R. 653; R. v. Foreman (2002), 169 C.C.C. (3rd) 489 (Ont. C.A.); R. v. Mapara, 2005 SCC 23. If admitted on the latter basis, I find that the requisite features of reliability and necessity are present. Under either doctrine, his admissions are admitted for their truth.
[64] I am satisfied that from the outset of Ms. Erickson’s journey, Mr. Sibble’s driving pattern was erratic, by which I mean that he engaged in a pattern of acceleration and braking that caused the bus to lurch and jerk as it travelled along.
[65] The evidence establishes that the bus was moving at not less than 40 kilometres per hour on its approach to the Intersection, and when Mr. Sibble was a distance of ten or, at most, fifteen metres from it, he became aware that the light was amber. The evidence supports the inference that when he noticed the amber light, he could not be sure how long it had been that colour, and was therefore concerned that he was approaching the Intersection on a stale amber that was about to turn red. Mr. Sibble was concerned about whether he had enough time to stop safely or sufficient time to proceed through. He anticipated that were he to opt for the latter, the light could change to red and he might get a “red light” ticket. By the time Mr. Sibble elected to stop, the bus was even closer to the Intersection than when he had first noticed the amber light.
[66] I accept that, at first Mr. Sibble braked “softly”. However, it became readily apparent to him that despite his braking efforts, the front of the bus was moving over the crosswalk and trespassing into the Intersection. The probabilities of the situation show that in recognizing this unwelcome state of affairs, Mr. Sibble applied the brakes suddenly and with much greater force, equivalent to slamming hard on the brakes, to prevent the bus from ingressing further into the Intersection. I think it is more likely than not that he also drew on the maxi-brake in a misguided attempt to fortify the conventional braking.
[67] Mr. Sibble’s sudden and vigorous braking caused the bus to come to an abnormally abrupt and jarring stop. The stop was not in the nature of a movement that would fall within the normal range reasonably expected by the transit travelling public, as was the case for example in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.). There was no reason, such as a pedestrian stepping out in front of the bus or a vehicle unexpectedly appearing or threatening to appear in Mr. Sibble’s oath, so as to justify stepping on the brakes with such sudden and excessive force. Even by jamming on the brakes, Mr. Sibble was not able to stop the bus until approximately one-third of its length had intruded into the Intersection.
[68] I find that Mr. Sibble glanced into his interior mirror as soon as he had made the stop to ensure that his passengers were safe precisely because he knew that the stop had been abnormally abrupt. It is not clear why at that time he did not see evidence of Ms. Erickson’s mishap.
[69] The evidence supports a finding that had Mr. Sibble been maintaining a proper lookout and exercising due care and attention as he advanced on this major intersection, he would not have been “caught short” in the sense of not having sufficient time to safely stop or proceed through safely before the light turned red. The evidence as a whole supports the conclusion that he failed to exercise the due care and attention and otherwise conduct himself in a manner reasonably expected of a prudent bus operator in all of the circumstances. Stated another way, I find that the Accident would not have occurred just the same had Mr. Sibble acted in accordance with his standard of care in discharge of the high duty that he owed to Ms. Erickson.
Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial. In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision. Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.”
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions. In the course of the lawsuit a total of 32 expert reports were obtained by the litigants. The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“. Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:
[27] Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.
Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
In last week’s case (Nemoto v. Phagura) the Plaintiff, who recently moved to Canada from Japan, was injured in a 2008 collision. She was 13 at the time. Fault was admitted by the offending motorist. She suffered soft tissue injuries to her neck and lower back. She also experienced anxiety while riding in a vehicle subsequent to the collision. In assessing non-pecuniary damages at $25,000 Mr. Justice Smith provided the following reasons:
[16] On the evidence before me, I find that the plaintiff suffered significant pain and limitations from the date of the accident until approximately the end of 2008, with intermittent, lingering difficulties for at least another year, but had achieved full physical recovery no later than two years after the accident. The physical difficulties in the immediate post-accident period were likely more difficult for the plaintiff to deal with than might otherwise have been the case because she was, at the same time, adjusting to a new school and life in a new country.
[17] I also find that the plaintiff experienced severe anxiety while riding in cars for approximately two years and that anxiety still affects her efforts to learn to drive. For purposes of assessing damages, it does not matter that this anxiety may, to some extent, be influenced by the fact that her mother has similar fears and anxiety flowing from the same accident. In any event, there is no reason to believe this will be a long-term problem.
[18] The plaintiff is in Canada on a student visa, which does not permit her to work, so there is no claim for income loss. I find there is no need for any future care arising from the accident…
[22] In all the circumstances, I assess the infant plaintiff Rui Nemoto’s non-pecuniary damages at $25,000…
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a common injury sustained in a motor vehicle collision; the onset of symptoms in pre-existing but otherwise asymptomatic spinal degeneration.
In this week’s case (Johnson v. Kitchener) the Plaintiff was involved in two collisions, the first in 2007 where he was rear-ended by a tractor trailer, the second in 2008 which aggravated in the injuries from the first crash. Prior to the first collision the Plaintiff had “significant degeneration” in his neck and less severe degeneration in the rest of his spine. Despite this condition the Plaintiff was asymptomatic. The collisions caused this condition to become painful. The court found that while the neck symptoms likely would have developed at some point in time absent the collision, the back would have remained asymptomatic absent trauma. In assessing non-pecuniary damages at $90,000 (prior to making a modest deduction for the likelihood of neck symptoms in any event) Madam Justice Gerow provided the following reasons:
[58] In my view, the evidence establishes the probable cause of Mr. Johnson’s ongoing neck, upper back and lower back pain is that the injuries he sustained in the 2007 accident, and the 2008 accident to a lesser extent, exacerbated his pre-existing asymptomatic degenerative disc disease. While there was risk to the degenerative disc disease in his neck becoming symptomatic, the medical evidence was that the lower back would likely not have become symptomatic absent some trauma.
[59] Dr. Travlos’ evidence was that he did not know exactly when the neck would become symptomatic and could not give an opinion regarding the severity of any symptoms. It is clear from the expert evidence that the 2007 accident caused a serious injury to the neck which has caused pain and suffering sooner, more frequently and to a notably greater degree.
[60] It is apparent from the evidence that Mr. Johnson has returned to his sporting activities and he has a strong work ethic. He is not a man to sit around and he continues to be active despite the pain it causes him. Mr. Johnson’s evidence is that he will continue to work at Ocean Concrete until he finds something more suitable despite the increase in symptoms he has from the physical aspects of the job. As well, he will continue to engage in whatever sports he can, knowing he will pay for it.
[61] Mr. Johnson’s evidence is consistent with the medical opinions. For example, Dr. Froh’s opinion is that Mr. Johnson will not harm himself with high demand activities; however, it will likely result in increased pain and symptoms.
[62] In my opinion, Mr. Johnson’s neck symptoms fall within the crumbling skull rule enunciated in Athey, and any award must reflect that. However, I am of the view, the defendants are liable for his lower back symptoms even though they may be more than severe than expected due to his pre-existing condition. The evidence of the experts is that many individuals have degeneration in their spines without any symptoms and that the degeneration in Mr. Johnson’s lower back was similar to other individuals of his age. There is no evidence that his lower back would have become symptomatic absent the 2007 accident. Accordingly I have concluded that his lower back symptoms fall within the thin skull rule enunciated in Athey. ..
[68] Having considered the extent of the injuries, the fact that the symptoms are ongoing five years after the accident with little improvement, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $90,000 if the accidents were the only cause of Mr. Johnson’s ongoing symptoms. However, given the evidence that Mr. Johnson was likely to have suffered some neck symptoms from his degenerative condition within 3 to 10 years, that award should be reduced by 10% to $81,000.
It’s that time of year again. The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs. The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.
The decision makers include Steve Matthews, author of the Law Firm Web Strategy Blog who, if he keeps up the good work, may just give law firm marketers a good name. Jordan Furlong of Law 21, who has no shortage of wisdom for lawyers reminding us that we must provide our services in a competitive and beneficial way otherwise learn that we may not be as irreplaceable as we may think. And last but not least, Simon Fodden who is the godfather of the most successful Canadian legal blog, Slaw.
My first nomination is not a blog. So much for following directions. Eugene Meehan’s Supreme Court of Canada newsletter is the source to follow for keeping appraised of all developments at the Supreme Court of Canada. You can find it and subscribe to it here. I figure it being a newsletter instead of a blog is a mere formality the powers that be should overlook.
Next, sticking in my neck of the woods, I’d like to nominate Dye and Durhams’ BC Law Watch for providing current, useful information on all things law related in BC.
Lastly David Bilinsky, the man who brought me into the world of Blawgging deserves yet another nod. It would be a shame if his streak of 5 consecutive years of Clawbies recognition came to an end.
OK, lastly for a second time, another shout out to the always outspoken Antonin Pribetic for not only his comprehensive posts but for never being shy of picking a fight in his Trial Warrior Blog and advancing clear and authoritative positions in a sometimes bland ‘happysphere‘.
Tinnitus, a subjective perception of non-existant sound, is a consequence sometimes seen following a motor vehicle collision. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such a condition.
In this week’s case (Yang v. Chan) the plaintiff was struck as a pedestrian in a marked crosswalk in 2007. Fault was admitted for the crash. The Plaintiff sufferd various soft tissue injuries but these largely settled down in the months following the crash. What persisted was moderately severe tinnitus, a symptom that was expected to linger indefinatley. The Court accepted this and assessed non-pecuniary damages at $60,000. In arriving at this assessment Madam Justice Wedge provided the following reasons:
[62] I accept the evidence of Dr. Longridge that Mr. Yang’s tinnitus was caused by the accident. According to Dr. Longridge, given the proximity of the onset of the condition to the accident, it is most unlikely that there is any other cause. Further, the tinnitus is moderately severe which, Dr. Longridge testified, is capable of significantly diminishing one’s enjoyment of life. It is a condition Mr. Yang will likely have to live with for the rest of his life.
[63] Taking into account the pain and disruption suffered by Mr. Yang due to his soft tissue injuries in the first six months after the accident, together with the ongoing tinnitus condition which is unlikely to resolve and will continue to interfere with his enjoyment of life, I have concluded that an appropriate award of damages for non-pecuniary loss is $60,000.
I have written numerous times about ICBC hit and run claims and a Plaintiff’s obligation to make ‘all reasonable efforts’ to identify an unknown motorist prior to being able to successfully sue ICBC for damages. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this obligation.
In this week’s case (Akbari v. ICBC) the Plaintiff was involved in a 2010 collision in which he struck a light pole. The Plaintiff alleged an unknown motorist ran a red light forcing him to take evasive action in the agony of collision. This motorist fled the scene. Madam Justice Baker accepted this and found that an unidentified driver did indeed cause the collision.
ICBC argued that the Plaintiff’s claim should be dismissed because he failed to make all reasonable efforts to identify the motorist after the fact. The steps ICBC suggested included staking out the intersection to try and see the vehicle on a subsequent occasion and interviewing residents at a nearby townhouse complex. Madam Justice Baker found these suggestions to be nothing more than a ‘fool’s errand’ that would be fruitless. In finding the Plaintiff’s actions reasonable the Court provided the following reasons:
[61] I am satisfied that Mr. Akbari did make all reasonable efforts to ascertain the identity of the unknown driver in the circumstances that pertained here. Mr. Akbari’s vehicle could not be driven and he was injured and in pain; he could hardly be expected to attempt to pursue the southbound vehicle on foot. Mr. Akbari told the attending police officer ? Constable Da Silva ? that another vehicle had been involved and he provided a description of the vehicle as a light-colored – white or silver – small car. Mr. Perez confirmed the involvement of the other vehicle and the description. Constable Da Silva obviously considered there to be little or no prospect of locating the suspect vehicle even minutes after it had left the scene; he did make any effort to do so, or to alert other patrol cars to search for the vehicle.
[62] Mr. Akbari recalls having inquired of Messrs. Shiles at the scene to find out if they had seen the vehicle that crossed his path. The accident was reported to the defendant as a “hit and run” within two hours after the collision happened. Both Mr. Akbari and his father provided statements to ICBC. Upon learning from his counsel of his obligation to attempt to ascertain the identity of the driver who left the scene, Mr. Akbari posted a sign at the intersection asking any witnesses to come forward. If any part of Mr. Chinchilla’s testimony is to be believed, it is that he saw the sign on the past at the intersection, and it was that sign that prompted him to contact ICBC and, eventually, Mr. Akbari’s counsel.
[63] Mr. Akbari also contacted Constable Da Silva a few days after the accident and asked whether there was a traffic camera at the intersection where the accident happened. Constable Da Silva said if there was a camera, it likely took only one photo ? when the light turned green ? but he said he would check and get back to Mr. Akbari. It was reasonable for Mr. Akbari to assume that there was no camera ? or no useful footage ? when he heard nothing further from Constable Da Silva.
[64] When Mr. Akbari realized that Ms. Berry did not know about Mr. Chinchilla and his claim to have witnessed the collision, he made sure that Ms. Berry was provided with the phone number he had for Mr. Chinchilla.
[65] Counsel for the defendant suggested to Mr. Akbari that he should have canvassed the residents of the townhouse complex located near the intersection to search for possible witnesses, but I consider that would have been a fool’s errand. The photographs of the scene indicate that the townhouse complex is some distance off the roadway and that it is highly unlikely that anyone in the townhouse complex would have been able to see anything happening in the intersection, particularly late at night, when it was dark and raining. The resident who did call to report the collision only did so because she heard the sound of the crash.
[66] Counsel also suggested that Mr. Akbari could have staked out the intersection to see if he could spot the vehicle that crossed his path. Again, this would have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall anything more specific than the fact that the other vehicle was a light-colored small car.
[67] To summarize, I am satisfied that it is more probable than not that the accident was caused by the negligent actions of an unidentified driver who entered the intersection from 84th Avenue against a red light; and drove across Nordel, cutting off Mr. Akbari’s vehicle when it was so close to the intersection as to pose an immediate hazard. I am satisfied on the balance of probabilities that Mr. Akbari did not fail to meet the standard of care required of a reasonably prudent motorist when he swerved to avoid colliding with the vehicle crossing his path.
[68] I am also satisfied that Mr. Akbari made all reasonable efforts to ascertain the identity of the unknown driver; and that the unknown driver’s identity is not ascertainable.
Large commercial vehicles sometimes have to make wide turns. In some circumstances it is necessary for such motorists to move out of the curb lane before executing such a turn. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing a collision occurring during such a maneuver.
In last week’s case (Steward v. Dueck) the Plaintiff was travelling the in the ‘fast’ lane. Ahead of her in the curb lane was “a very large commercial vehicle“. The commercial vehicle started a right hand turn by first signalling, checking that traffic was a safe distance behind him, crossing into the fast lane and beginning his wide turn. During this time the Plaintiff collided with the trailer unit. The Plaintiff sued for damages but the claim was dismissed. The Court found the commercial driver was not negligent In dismissing the claim Madam Justice Dardi made the following findings:
[25] Prior to initiating his turn, Mr. Dueck described that he first checked the traffic. He was satisfied that he could safely initiate his manoeuvre, as the traffic was a safe distance behind him. He then signaled a left turn and moved from the slow or curb lane into the fast lane. He blocked the lanes by crossing the dotted dividing line. He then turned his Unit into and through the left turn lane to make his turn. He says he never had his Unit entirely in the left turn lane but rather, he turned his Unit through the lane in “an arc”. He described his turning manoeuvre, which he says he executes routinely, as being designed to discourage other drivers from passing him on either side while he is executing his turn…
[35] Ms. Stewart does not take issue with Mr. Dueck’s assertion that the turning manoeuvre he undertook was appropriate for executing a right-turn at this particular Intersection. Rather, Ms. Stewart’s essential contention is that Mr. Dueck should have slowed down or stopped before initiating his right turn so that he could have first ascertained Ms. Stewart’s position. Her counsel disputes that Mr. Dueck activated his four-way flashers. In any case, if it is found that Mr. Dueck did activate his four-way flashers Ms. Stewart argues that this did not constitute sufficient warning of his manoeuvre…
[55] In my view, the preponderance of the evidence supports a finding that Ms. Stewart failed to exercise due care in all of the circumstances. A reasonable driver in her position would have been put on notice that she should proceed with caution. Mr. Dueck’s 72-foot Unit with 14 flashing lights proceeding at 15 kph was clearly there to be seen. Contrary to the assertions of Ms. Stewart’s counsel, such a large vehicle “does not turn suddenly.” Ms. Stewart did not testify that she was watching the Unit and that Mr. Dueck failed to activate his four-way flashers or the right turn signal. She merely says that she did not observe his four-way flashers or the right turn signal. Had she been paying due care and attention to the roadway ahead of her, the operational flashing signals of his Unit – seven signal lights located at intervals down the length of each side of the Unit – would have been clearly visible to her. The four-way flashers and right turn signal would have been fully visible from the rear and passenger side of the Unit.
[56] The Supreme Court of Canada in Swartz Bros. Limited v. Wills, [1935] S.C.R. 628 at 634, endorsed the notion that: “[W]here there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible.” See also Millot Estate v. Reinhard, 2001 ABQB 1100 at para. 46. This principle has application to this case…
[65] The only reasonable inference is that Ms. Stewart was not paying due care and attention as she was approaching the Intersection.
[66] I find that Ms. Stewart bears the onus of proving negligence. In my view, she has failed to discharge her burden of proof. I am not persuaded on a balance of probabilities that the accident was attributable to any want of care on Mr. Dueck’s part. I find Ms. Stewart entirely at fault for the accident. Moreover, Ms. Stewart has failed to prove any negligence on Mr. Dueck’s part for the second impact she says occurred as Mr. Dueck backed up his Unit to clear the Intersection. I find that Mr. Dueck acted reasonably in the circumstances. In reaching my conclusions, I have considered the entire body of evidence and, in my view, it best harmonizes with the preponderance of the probabilities.