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$60,000 Non-Pecuniary Assessment For Chronic Grade II Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived posts documenting BC soft tissue injury non-pecuniary assessments, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic Grade II Whiplash Injury.
In this week’s case (Strazza v. Ryder) the Plaintiff was injured in a 2009 rear-end collision.  He suffered soft tissue damage to his neck and mid back.  His symptoms of pain, while “not debilitating” continued to the time of trial and caused him to reduce or modify his daily activities   His symptoms were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Adair provided the following reasons:
[67]         Mr. Strazza himself reports that he continues to experience pain.  It is not debilitating, and Mr. Strazza has not claimed that it is.  It has not prevented him from working or doing household chores or working on his car.  As Mr. Strazza describes it, he can basically do everything he did before the accident, but with pain.  Mr. Strazza describes his situation as one where he works and carries on despite his pain symptoms, which he does his best to alleviate by taking over-the-counter medications or by calling on someone to help.  As a result of his pain symptoms, Mr. Strazza has modified some of his activities, both leisure and work-related, since the accident.  Friends – Ms. Miller and Ms. Goalder – gave evidence of their observations in this respect, and their evidence supported Mr. Strazza’s.  The changes in Mr. Strazza are not drastic, but they are changes nevertheless…
[72]         More generally, I found Mr. Strazza to be forthright and a credible witness.  He spoke plainly and did not exaggerate.  He had no difficulty and no hesitation conceding points that were not necessarily in his favour, for example, that working for Madill was just not for him.  On cross-examination, Mr. Strazza was the opposite of defensive or argumentative, which allowed the cross-examination (by very experienced counsel) to proceed smoothly and efficiently.
[73]         I therefore find that, as a result of the accident, Mr. Strazza sustained soft tissue injuries to his cervical spine and his thoracic spine.  Specifically, and as set out in Dr. MacKean’s February 8, 2012 report, I find that Mr. Strazza sustained a grade II whiplash associated disorder in the cervical spine, which (as of trial) was resolving and a grade II whiplash associated disorder in his thoracic spine with residual pain and muscle spasm involving the left mid to lower thoracic region.  Based on Mr. Strazza’s evidence (supported by the evidence from Ms. Miller and Ms. Goalder), he continues to experience some pain as a result of his injuries.  I therefore find, based on this evidence and the opinion evidence from Dr. MacKean, that Mr. Strazza’s pain symptoms will probably not resolve completely, although they can be improved with a regular exercise program and pain relief can be obtained through occasional use of over-the-counter medication…
[81]         Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.

Late Plaintiff Testimony Does Not Result In Adverse Inference in Injury Claim

Written by admin on . Posted in Civil Procedure, Uncategorized.

In my ongoing efforts to track judicial commentary of late plaintiff testimony in injury litigation, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this practice.
In this week’s case (Ram v. Rai) the Plaintiff was injured in a rear-end collision.  At trial her mother and sister testified before she did.  The Defendant argued that the Court should draw an adverse inference in these circumstances.  Mr. Justice Holmes refused to do so but provided the following comments addressing the practice of late plaintiff testimony:
[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence. 
[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 
[38]         Madam Justice Humphries discussed these problems at greater length in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116.
[39]         Mindful of the potential dangers in the sequence of witnesses in this trial, I find the situation to be a relatively unusual one in which I can be fully confident that Ms. Ram’s evidence was not contaminated in any way by her having heard her mother and her sister give evidence before her.
[40]         The three witnesses gave accounts of the collision and its effects on Ms. Ram, apparent or felt as the case may be, that were consistent with each other in their broad outline but which each spoke clearly and convincingly from the witness’s own perspective.  The mother and the sister testified about what they saw, while Ms. Ram testified about what she felt. 
[41]         For example, Ms. Ram’s mother testified in general terms that after the accident Ms. Ram spent much more time alone in her room.  Ms. Ram in her testimony did not describe her conduct in quite the same way.  She testified that after the accident she felt generally unwell and could not keep up with her usual activities, friends, school, and work.  Sometimes her headaches were bad and she would need to stay alone in a dark room.  These were not identical accounts, but they described the same response from different perspectives.
[42]         In another example, Ms. Ram’s sister testified that Ms. Ram’s posture was affected by the accident.  She testified that Ms. Ram would tend to stoop, and as she began to recover the sister would often touch Ms. Ram on the nose to remind her to straighten up.  Ms. Ram made no mention of stooping or her sister touching her nose, and referred only in passing to her posture as an aspect of the consequences of her back pain.  Ms. Ram’s evidence was in no way inconsistent with her sister’s, but spoke of the pain she herself felt, rather than the stooping the sister saw.
[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.
[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.
In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.
Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:
[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”
[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.
[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.
[17]         The defendant’s application is therefore dismissed

Substitution Orders in ICBC Hit and Run Claims are "Mandatory in Their Nature"

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Last year I questioned the correctness of reasons for judgement which refused to make a substitutional order in an ICBC Claim involving an unidentified motorist.  Reasons for judgement were released this week by the BC Supreme Court,  Chilliwack Registry  further addressing this area of the law finding that substitution orders are mandatory once the identity of an unidentified motorist becomes ascertained.
In this week’s case (McStravick v. Metzler) the Mr. Metzler and Ms. McStravick were occupants of a motorcycle involved in a serious collision.  An allegation was made that an unidentified motorist caused the collision.  ICBC was named as a nominal defendant under section 24 of the Insurance (Vehicle) Act.
Evidence disclosed on the eve of trial and trough witnesses during trial gave rise to identifying the unknown motorist.  The Plaintiff brought an application to substitute this person for ICBC in the lawsuit.  The motorist and ICBC vigorously oppose the application.  Mr. Justice Blok ordered the substitution and in doing so provided reasons highlighting the mandatory nature of Section 24(6) of the Insurance Vehicle Act.  The Court provided the following reasons:
[53]         I would observe at the outset that s. 24(6) of the Insurance (Vehicle) Act is mandatory in nature.  If the identity of the driver is ascertained then that person must be added as a defendant in substitution for ICBC.  The factors applicable to cases where parties are being added under the Supreme Court Civil Rules therefore have no application: Tse v. ICBC (1996), 24 B.C.L.R. (3d) 394 (S.C.).
[54]         While counsel for Ms. Sidwell concedes that the Court probably does not have jurisdiction to refuse to substitute an ascertained defendant in place of ICBC, he said that conditions may be specified, as expressly provided by s. 24(6).  However, counsel did not suggest any conditions that might be appropriate, short of refusing the application altogether.  Given the mandatory language of the section, a refusal cannot be a condition.
[55]         The mandatory language of the section also limits, and probably eliminates, any scope for the application of the equitable principle of estoppel insofar as applying the estoppel principle would operate to defeat the intent and effect of the section.
[56]         Even if there might still be some room for estoppel to operate, I am not satisfied that estoppel has been made out on the facts of this case.  Ms. Sidwell submits that as a result of the “shared assumption” of all counsel that she was not the unknown driver, she ceased being represented by counsel and did not take part in the trial.  What that submission fails to address is the fact that (1) the substitution application can be made at any time prior to judgment being granted, and (2) her interests were represented throughout by ICBC as nominal defendant.  As to the former, since s. 24(6) allows for a substitution application to be made at any time prior to judgment, a trial might well be completed before an application is made and with no hint of it beforehand.  Here, Ms. Sidwell had two years or more of advance notice and she had representation by counsel during that time.  In addition to her own counsel, counsel for ICBC represented the interests of the unknown driver, whoever that might have been, and thus in some respects at least she had two lawyers representing her interests until shortly before trial.
[57]         Ms. Sidwell complains that she was deprived of taking part in the trial, but until she was made a party she would have had no standing to take part.  She points to no prejudice associated with the fact that her interests, at least her interests in a general sense, were represented by counsel for ICBC instead of her own counsel.
[58]         Further, I do not consider that an estoppel against ever bringing a substitution application arises in this case.  Counsel for the plaintiff Metzler submits that while the last-minute disclosure of the Sidwell and Popovich witness statements revived the possibility that the plaintiffs would bring a substitution application – a possibility that counsel expressly stated at the outset of the trial – it was not until those witnesses had given evidence and their evidence tested in cross-examination that they considered the plaintiffs had a sufficient basis on which to bring the application.  In these circumstances I consider this approach to have been reasonable and prudent.  However, ICBC and Ms. Sidwell argue that the plaintiff Metzler is bound by his counsel’s letter so as to foreclose any possibility of a successful substitution application.  This would mean that even if Ms. Sidwell had expressly admitted at trial that her driving was the cause of the accident the defendants could not have substituted her as defendant in ICBC’s stead.  That cannot be correct.
[59]         Finally, there is an additional difficulty in applying an estoppel here in any event because the primary facts asserted as giving rise to an estoppel apply only to the plaintiff Metzler and not to the plaintiff McStravick.  The most that can be said in regards to Ms. McStravick is that her counsel attended a trial management conference at which the judge was told that the application was not being brought.  Only in Mr. Metzler’s case was a letter written, in arguably more definitive terms.  This leaves the unsatisfactory possibility that Ms. Sidwell might be substituted as a defendant in one case but not the other.  Fortunately I do not have to address this difficulty because I conclude that even on the strongest facts that are alleged an estoppel of the type and scope asserted does not arise.

BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Written by admin on . Posted in BCSC Civil Rule 5, BCSC Civil Rule 7, Uncategorized. 148 Comments on BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Earlier this year I highlighted two  judgements (here and here) discussing that the New Rules of Court don’t allow the Court to override solicitor’s privilege.  Further reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Nowe v. Bowerman) the Plaintiff was injured in a 2008 motor vehicle collision and sued for damages.  The Defendant set down a Case Planning Conference asking for an order that “Plaintiff’s counsel advise the defence of the areas of expertise of his proposed experts“.
Madam Justice Dickson dismissed this request finding it would infringe on solicitor’s brief privilege.  In doing so the Court provided the following reasons:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.  In this case, however, I am unable to identify such a compelling reason.  In these circumstances, I decline to make the order sought.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Negligent Commercial Bus Driver Escapes Liability Due to Waiver of Liability; Legislative Intervention Required?

Written by admin on . Posted in Uncategorized.


 
UPDATE  – April 30, 2014 – The below decision was overturned by the BC Court of Appeal
I have previously discussed the real world consequences of waivers of liability and the fact that these can strip people seriously injured through the fault of others of meaningful legal recourse.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, creating a troubling precedent allowing such a waiver to stand in the context of a motor vehicle collision claim.
In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler  BC to participate in various activities including a zip lining experience.  Transportation to and from Whistler was provided the by the Defendant.   During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“.  The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.
Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”.  The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages.  The Defendant admitted he was negligent but the waiver was upheld dismissing the plaintiff’s claim.  In doing so Mr. Justice Armstrong provided the following reasons:
[80]         In my view, the Release is a clear and relatively easy to read document. Although some of the print is small, large capitalized portions of the Release draw attention to the important features of safety, assumption of risks, release of liability and waiver of claims. A reasonable person would recognize the purpose and extent of the document, including the connection between the release and travel to and from the tour site.
[81]         I have concluded that the defendants were not obliged to point out the waiver clauses, with specific reference to the bus transportation to and from the tour site. There were no distinct features of the bus trip as opposed to the other zip line activities that should have been brought to the plaintiff’s attention…
[93]         I have considerable sympathy for the plaintiff due to the injuries sustained in the accident. The plaintiff is entitled to some benefit as an insured person under Part VII of the Act. However, the plaintiff is not entitled to recover damages due to the defendants’ negligence because she surrendered that right when agreeing to the waiver and release of all claims as a condition of being permitted to use the defendants’ zip line facility.
This is a troubling finding and can pave the way for commercial vehicle operators requiring customers to sign waivers of liability in essence shielding these operators in the face of negligently caused injuries.  Mr. Justice Armstrong held such a result “is not contrary to public policy“.  In reaching this conclusion the Court provided the following reasons:
92]         However, in this case, the Release does not impact public policy or the statutory automobile insurance scheme. This Release deals only with the plaintiff’s right to recover damages from the defendants caused by the defendants’ negligence. The statutory scheme is not engaged until there has been a determination, or settlement, of a complainant’s entitlement to money as compensation for injury suffered as a result of the negligence. In my view, the plaintiff’s argument does not engage a debate about public policy.
I understand the decision is being appealed and I will author a follow up post after the Appellate Court addresses this issue.
Assuming, however, that this result is correct it is one which clearly calls out for legislative intervention.  If the law requires motorists to carry Third Party liability coverage to ensure those injured through their carelessness have recourse to damages the law should not permit waivers to apply to strip innocent individuals of this statutorily required protection.

Can I Get Fees With That? Law Firm Unsuccessfully Seeks Fees From Their Own Insurer's Negligence Payout

Written by admin on . Posted in Uncategorized. 53 Comments on Can I Get Fees With That? Law Firm Unsuccessfully Seeks Fees From Their Own Insurer's Negligence Payout

Reasons for judgement were released  this week by the BC Supreme Court, Vancouver Registry, addressing whether a lawfirm that negligently failed to file a lawsuit before the expiry of a limitation period can then seek fees from their clients for the payout the client’s receive in successfully pursuing the lawfirm for damages stemming from their negligence.  Not surprisingly the answer was no.
In this week’s case (Taylor v. Brozer) the clients were injured in a 2006 Washington State collision.  The crash was caused by an underinsured motorist.  They had ICBC Underinsured Motorist Protection coverage and retained the lawfirm to represent them in their UMP Claim. They did so on a contingency basis.  The lawfirm “failed to file a writ in Washington State and missed the limitation period thus denying the clients their rights to seek UMP protection/damages from ICBC“.
The clients hired a new lawyer to sue the former firm.   Ultimately the former firms insurer paid out a $200,000 settlement “based on the clients’ expected recovery under UMP“.
The initial lawfirm then sought over $25,000 in fees from their former clients “in respect of the work it did for the clients” arguing that the work they did before missing the limitation period “was of value and the lawfirm ought to be compensated“.  Registrar Sainty dismissed the claimed fees finding they could not be recovered.  In reaching this decision the court provided the following reasons for judgement:
[49]         There is no dispute between the parties that these solicitors were retained by these clients for a single purpose: “to handle the client’s claim for damages arising from injury suffered in the [Accident]” (paragraph 1 of the retainer agreement). The retainer agreement between them is therefore an “entire contract” in accordance with the holdings in Ladner Downs v. Crowley (supra).
[50]         Since it is an “entire contract”, unless the solicitors had “good cause” to withdraw from acting for the clients, they are not entitled to any fees for the work done by them for the clients up to the time the retainer contract was terminated (Maillott and Morrison Voss v. Smith, 2007 BCCA 296).
[51]         Did they have “good cause” to withdraw? There is no doubt that it was their negligence (in missing the limitation period) that terminated the retainer. After realising their negligence, the solicitors were bound to withdraw and they could no longer act for the clients.
[52]         Can the solicitors own negligence constitute “good cause” as submitted by the law firm or must it be said that as the solicitors “caused” the termination (by their own negligence) therefore must be found not to have had good cause to withdraw (as submitted by the clients)?
[53]         In my view, the solicitors cannot be found to have “good cause” to withdraw. It is simply not proper to hold that a lawyer may find “good cause” for withdrawal in his own negligence and thus be entitled to claim a fee for work done for his clients before his negligence was discovered but may not find “good cause” for withdrawal in something completely beyond his control (e.g., an appointment to the bench, nonpayment of practice fees, death or the like) and lose his entitlement to claim a fee for work done up to the time of the involuntary act. My view is supported by the decision of District Registrar Blok (as he then was) in McVeigh v. Ewachniuk, 2003 BCSC 1328) wherein it was held that a solicitor’s disbarment was not “good cause” for terminating an entire contract retainer.
[54]         Even if I am wrong in this analysis, I find that the work performed by the law firm was of no value to the clients and therefore the clients should not be required to pay the law firm for any of that work. The failure of the law firm to file the action in Washington State defeated the whole purpose of the retainer. But for the assistance of New Counsel and the intervention of the law firms’ insurer, the clients were left with no remedy against the underinsured motorist and thus the work done by the solicitors must be said to have been of no value. Any value was lost once the limitation period was missed and the personal injury action became doomed to fail.

Rule 15 Costs Cap Applied to Settlement of a Non-Rule 15 Claim

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Further to my previous posts on this topic (which can be found here and here), reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that the Rule 15 costs cap can apply to a personal injury claim litigated outside of the fast track when a settlement below $100,000 is achieved.
In the recent case (Varga v. Shin) the Plaintiff was injured in a 2006 collision.  The plaintiff initially sought significant damages over $422,000 and the case was prosecuted in the usual course.  It was never put into the fast track rule.  Prior to trial the case settled for $65,000 plus costs “to be assessed or agreed“.  The parties could not agree on the costs consequences with the defendant arguing that the Rule 15 cap should apply.  Registrar Sainty agreed and in doing so provided the following reasons:
[27]         I prefer Ms Taylor’s submissions in relation to the application of the costs provisions of R. 15-1. In my view, this action, even though it was not declared to be a “fast track” action, is subject to the costs provisions of R. 15-1(15). I agree with Ms Taylor’s submissions that R. 15-1(1) is exclusive and not inclusive. In my opinion, if a matter settles for less than $100,000, R. 15-1(15) applies to the costs of the action. This is made clear, in my view, by the addition to the Rules of R. 14-1(1)(f). That subrule effectively fast tracks actions that were not fast tracked but should have been (see Axten, supra, and Affleck v. Palmer, 2011 BCSC 1366). The cases cited by Mr. Warnett (listed above) were all, in my view, decided per incuriam: without reference to either R. 15-1(1) or 14-1(1)(f) in relation to the issue of costs.
[28]         This interpretation is in keeping with the object of the Rules: “to secure the just, speedy and inexpensive determination of every proceeding on its merits” 
(R. 1-3(1)) and the proportionality provisions set out in R. 1-3(2).
[29]         Finally, I note that Mr. Warnett also suggested that, if the defendants wished the provisions of R. 15-1(15) to apply to the action, they ought to have applied to place it into fast track and as they did not do so, they should not be allowed to limit the plaintiff’s costs to the costs allowed under R. 15-1(15). This suggestion cuts both ways however. Just as it was open to the defendants to seek an order bringing the matter into fast track, it was also open to Mr. Warnett to seek an order (even at the trial management conference) that R. 15-1 not apply to the action. He did not do so and as the action is by operation of the Rules a fast track action, it attracts costs per R. 15-1(15).
[30]         As I have found that the action falls within the provisions of R. 15-1(15), thus the plaintiff is entitled to some proportion of the $6,500 “cap” available (see Duong v. Howarth, 2005 BCSC 128; and Anderson v. Routbard, 2007 BCCA 193 [Anderson]). In order to avoid a re-attendance before me (or some other registrar) to determine how much of that cap the plaintiff may claim, I am going to employ some “rough and ready justice” (see Anderson, at paragraph 49 and Cathcart v. Olson, 2009 BCSC 618 at paragraph 19) to this matter. I will set the amount at the full $6,500, plus tax. This matter settled some 15 days before trial. Likely a good deal of the trial preparation had occurred up to the settlement. It is therefore appropriate that the plaintiff receive the full amount of the cap: see Gill v. Widjaja, 2011 BCSC 951 (Registrar), aff’d 2011 BCSC 1822.

Cyclist Found 15% at fault For Collision While Riding in Cross-Walk

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In my continued efforts to document BC decisions addressing fault for vehicle/cyclist collisions, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing an crosswalk collision involving such an incident.
In last week’s case (Callahan v. Kim) the Defendant motorist stopped at an intersection on a red light.  He intended to make a right hand turn.  At the same time the Plaintiff cyclist approached on the sidewalk to the motorist’s right.   The Defendant failed to see the Plaintiff who entered the intersection on his bicycle as the Defendant commenced his right hand turn.  The Court found both to blame with the motorist shouldering 85% of the fault.  In coming to this decision Madam Justice Fenlon provided the following reasons:
[10]         As for Mr. Kim’s vehicle, I find that he stopped at the stop line on Riverwood Gate, intending to make a right turn north onto Coast Meridian. He looked quickly to his right and failed to notice the plaintiff who at that time was either at the pedestrian control button or approaching it. Thereafter, as Mr. Kim admitted, he was looking to his left and then ahead and did not check right again before moving into the crosswalk and colliding with Mr. Callahan…
[18]         In assessing whether Mr. Kim failed to meet his duty of care, a number of considerations come into play. First, Mr. Kim was proceeding against a red light. Second, Mr. Callahan was in a marked crosswalk with both a green light and a pedestrian walk sign in his favour. I find that, even though Mr. Kim acted within the law in making a right turn on a red light, he had a clear duty to give way to a user of the crosswalk. While Mr. Callahan contravened s. 183(2)(b) by not dismounting and walking his bicycle across the street as required by the Motor Vehicle Act, and therefore did not have the statutory right-of-way, he was nonetheless a user of the crosswalk. A crosswalk is precisely where other users of the roadway are expected to be, especially when the traffic signals are in their favour.
[19]         I conclude that Mr. Kim departed from the standard of care he owed in these circumstances when he failed to check again to his right before setting his vehicle in motion to start his right turn. Mr. Kim’s failure to do so was a direct cause of the accident…
[33]         In my view, the case before me is far more like Dobre. In that case, the plaintiff cyclist approached the intersection by riding on the wrong side of the street but stopped before entering the marked crosswalk, looked left and right and pushed the button to activate the pedestrian warning light. He was pedalling slowly across the intersection and was close to the centre of the road when the defendant’s car struck the rear wheel of his bicycle. As in the case at bar, the plaintiff in Dobre checked to his left and observed a car approaching but assumed it posed no hazard to him. In that case, N. Brown J. apportioned liability 85% to the driver and 15% to the cyclist.
[34]         I find Mr. Kim’s conduct in failing to observe the plaintiff in the crosswalk and in starting a turn without looking to his right to be far more blameworthy than Mr. Callahan’s failure to make eye contact. Taking into account all of the circumstances in the case before me, I conclude that liability should be apportioned 85% to Mr. Kim and 15% to Mr. Callahan.

"Fat Bottomed Girls": When Free Speech and Alleged Witness 'Victimization' Collide in the BC Supreme Court

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This is a little off topic but thought this may be of interest for my readers.
Trials are a matter of public record and Canada’s open-court principle can sometimes create legitimate privacy concerns for litigants.  The BC Supreme Court published reasons for judgement today addressing such a concern.
In today’s case (Mainstream Canada v. Staniford) a blog entry was posted during a trial referring to two witnesses who testified that “It is not clear if they both cycled to the courtroom – but there were echoes of Queen’s classic 1978 hit “Fat-Bottomed Girls” playing as they both took the stand.”
The Plaintiff’s lawyer brought an application for a direction that the Defendant “refrain from making postings referring to witnesses in any derogatory or disparaging fashion that may have the effect of victimizing a witness or witnesses who are testifying, or may have testified, at this trial.”  Madam Justice Adair refused to make such an order but in doing so provided the following reminder to the litigants:
[7]             I am going to quote from Lord Denning’s judgment in the case of Attorney-General v. Butterworth, [1962] 3 All E.R. 326 (C.A.).  This is a decision of the English Court of Appeal.  It is from 1962.  But in my view it is still well worth quoting, and well worth reminding counsel, parties and those present in this courtroom, concerning issues relating to the administration of justice and the appropriate and fair treatment of witnesses who come forward, often under the compulsion of a subpoena, to give evidence and perform their civic duty in a trial.
[8]             Lord Denning says (in the context of ruling on an application that individuals be found in contempt of court), at p. 329:
For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it.  How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he had given?  After he has honestly given his evidence, is he to be liable to be dismissed from his office, or to be sent to Coventry [a reference that perhaps had more resonance in 1962 than it does now, but essentially meaning banished or punished] simply because of that evidence which he has given?  I decline to believe that the law of England permits him to be so treated.  If this sort of thing could be done in a single case with impunity, the news of it would soon get round.  Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.
[9]             Further down at p. 329, Lord Denning says:
I have no hesitation in declaring that the victimization of a witness is a contempt of court whether it be done whilst the proceedings are still pending or after they have finished.
[10]         In my view, it is clear from Lord Denning’s remarks that the court takes the intimidation or the victimization of a witness extremely seriously and is willing to use its contempt powers to punish that conduct.
[11]         Having said that, in the light of the submissions made by Mr. Sutherland concerning the live issues in this case relating to the conduct of Mr. Staniford – his conduct of the case inside and outside the court – I am not going to give the direction sought by Mr. Wotherspoon.  However, my expectation is that the parties and those present in this courtroom will take very seriously Lord Denning’s comments which I have read out and which I adopt.