For those of you visiting this site after reading today’s article in the Vancouver Sun discussing Class Proceedings Act litigation with respect to Court hearing fees , welcome.
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Although not common, motorists can be found partly or even wholly at fault after being involved in a rear-end collision. Such a result was demonstrated in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Stanikzai v. Bola) the Plaintiff rear-ended the Defendant’s vehicle. The Court was presented with competing versions of how the collision occurred but ultimately accepted the evidence of an independent witness who confirmed the Defendant “quickly” moved into the Plaintiff’s lane as we was attempting a U-turn in front the the Plaintiff’s vehicle. In finding the Defendant 75% at fault for the resulting impact Mr. Justice Smith provided the following reasons:
] The only independent witness called was Mr. Tiwana, a truck driver who was behind the plaintiff in the left lane. Like the plaintiff, he described the defendant’s van moving into the right lane, then quickly attempting a u-turn in front of the plaintiff’s vehicle, leaving the plaintiff no time to react. However, one significant difference between the plaintiff’s evidence and that of Mr. Tiwana is that Mr. Tiwana said he saw the left turn signal on the defendant’s vehicle before what he described as the attempted u-turn.
[7] There is no doubt that when one vehicle hits another from behind, the onus is on the driver of the rear vehicle to show that the collision was not caused by his or her fault: Barrie v Marshall, 2010 BCSC 981. A driver following other vehicles is expected to keep his vehicle under sufficient control to be able to deal with sudden stopping or slowing of the vehicle in front: Pryndik v. Manju, 2001 BCSC 502.
[8] But while liability for a rear end collision usually rests entirely with the following driver, that is not an invariable result. For example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to be equally at fault for a rear end collision. In that case, the front driver stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the court found that the rear driver was travelling either too fast or too close behind to stop when confronted with the hazard.
[9] The plaintiff and the defendant in this case give conflicting evidence that cannot be reconciled. In attempting to determine what happened, on the balance of probabilities, I prefer the evidence of the only independent witness, Mr. Tiwana. He describes the defendant moving suddenly into the plaintiff’s lane in circumstances where the plaintiff did not have time to stop. That is not consistent with the defendant’s evidence of the lapse of time between her lane change and the collision and I do not accept her evidence on that point. I do accept her evidence that she had no reason to be making a u-turn and was not attempting one, but I find that her turn to the left on impact likely created the mistaken impression of a u-turn.
[10] Based on Mr. Tiwana’s description of the accident, I find that the defendant, in changing lanes, failed to notice or properly assess the position of other vehicles and failed to ensure that she had sufficient room to change lanes safely. Section 151(a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 reads:
151 A driver who is driving a vehicle on a laned roadway
(a) must not drive from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle,
[11] I therefore find that the accident was caused or contributed to by the negligence of the defendant. However, on the basis of Mr. Tiwana’s evidence, the plaintiff must also bear some responsibility because he failed to see the defendant’s turn signal. Although the defendant’s move was a sudden one, seeing her turn signal would likely have given the plaintiff an earlier opportunity to either apply his brakes or to at least use his horn to warn the defendant of his presence.
[12] Because it was the defendant who created the dangerous situation, I find that she must bear the greater share of blame and apportion liability 75 per cent to the defendant and 25 per cent to the plaintiff.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a fractured wrist which resulted in post traumatic arthritis and permanent dysfunction.
In last week’s case the Plaintiff was struck by the Defendant’s vehicle as she was crossing the street. Fault for the crash was admitted. The Plaintiff suffered a comminuted fracture of her distal radius which required surgery.
The injury resulted in post traumatic arthritis developing which interfered with its function and was expected to cause limitations on a permanent basis. In assessing non-pecuniary damages at $85,000 the Court highlighted the following medical evidence addressing prognsois and provided the following reasons:
[9] In his May 15 report, Dr. Somani states as follows:
…
Prognosis.
It is my opinion that the Plaintiff has plateaued with respect to function. She continues to have discomfort of the right wrist. Clinical examination has demonstrated reduced range of motion and reduced grip strength. Recent x-rays have confirmed probable premature osteoarthritis which may be progressive.
The Plaintiff has impairment in the abilities to self-care, housecleaning, laundry, complex meal preparation and transportation as outlined by the occupational therapy assessment.
The Plaintiff will continue to require support services which may include cleaning, meal preparation, shopping, laundry and transportation.
The Plaintiff may require specialized bracing for her right wrist and possibly an orthopedic opinion should her osteoarthritis progress in the future.
The Plaintiff will continue to require analgesia for pain management and regular assessments of her home with respect of safety features including handrails etc….
[22] On March 8, 2010, the Plaintiff was an active, independent woman of 76 clearly taking great pleasure in her life. After her injury, she was not able to look after herself and took a long while to even get back to walking. Now she is left with a right hand of limited use because of pain, arthritis and de-conditioning, a fear of walking on her own and significant loss of function such that she can no longer cook as she once did, or do the heavier housework. She continues to have pain and suffering and her enjoyment of life is markedly diminished. For that loss, I award her general damages of $85,000.
Two useful, albeit unreported, cases were recently provided to me dealing with objections to two fairly common examination for discovery questions and dealing with their propriety.
In the first case (Blackley v. Newland) the Plaintiff was injured in two motor vehicle collisions. In the course of examining the Defendant for discovery, the Plaintiff’s lawyer asked a series of “do you have any facts known or knowable to you” questions addressing the specific allegations set out in the Pleadings such as:
At trial, the Plaintiff proposed to read this series of questions and the answers that followed to the Jury. Mr. Justice Williams held that while the exchange should not go to the jury as its prejudicial effect outweighed its probative value, the series of questions was entirely appropriate in the context of an examination for discovery. Mr. Justice Williams provided the following comments:
[10] Speaking generally, in this case, I do not find that the questions asked at the examination for discovery are improper. They can be said to have been substantially informed by the statement of defence that was filed by the defendant. As is usual, that statement of defence is replete with denials and positings of other alternative propositions.
[11] The examination for discovery conducted by plaintiff’s counsel was obviously shaped in part as a response to the pleadings of the defendant and was an appropriate use of the examination process, specifically to discovery the defendant’s case.
In the second decision (Evans v. Parsons) the Defendant put a medico-legal report to the Plaintiff and asked the broad (and arguably compound) question “Okay. Was there — the facts in Dr. Aiken’s report, was there anything that struck you as incorrect?“. The Plaintiff’s lawyer objected to the question resulting in a chambers application. The Defendant argued the question was fair and further that the limited two hour discovery in Rule 15 matters allowed this type of a short cut question.
Master Caldwell disagreed finding the question was too broad and vague. In doing so the Court provided the following reasons:
All right. Thank you. Applications to have a subsequent examination for discovery done specifically to address what I do find as an extremely general and vague question which was asked and objected to at the first discovery. That comment probably leads one to surmise the application will be dismissed, at it will. There was an opportunity to specify what facts were being referred to, and counsel refused to further qualify. There’s a reason for short discoveries in rule 15-1 cases. Two hours were granted. If this was an important question, it could have been addressed earlier in the discovery. I don’t, in the circumstances of the context of the question, believe it to have been a fair question to the plaintiff. It was far too general, and, as I say, defence counsel refused the opportunity to further qualify or narrow it. I’m not going to force the Plaintiff to answer such a general question. Application is dismissed. Costs to the Plaintiff.
To my knowledge these judgements are not yet publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests copies.
As previoulsy discussed, when a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under Rule 14-1(18) to order that the unsuccessful defendant pay the successful defendants costs. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the flexibility of this discretion in action.
In last week’s case (Bakker v. Nahanee) the Plaintiff was injured when struck by a stolen vehicle being driven by the Defendant. The Plaintiff sued for damages and, as is customary in BC, also sued the Registered owner of the vehicle alleging vicarious liability pursuant to section 86 of BC’s Motor Vehicle Act. As the lawsuit progressed it became clear that the at fault vehicle was indeed stolen making the vicarious liability claims untenable.
Ultimately the action was dismissed against the owner and a settlement was reached with respect to the claim against the driver. The Plaintiff applied for an order that the Driver pay the costs of the successful owner. Madam Justice Fitzpatrick agreed such a result was justified but only until the examination for discovery phase where it was obvious that the vicarious liability claims would not succeed. The Court provided the following reasons:
[40] Supreme Court Civil Rule 14-1 (18) provides that the Court may exercise its discretion in ordering that the costs of one defendant be paid by another defendant:
If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant…
[52] It is not a novel concept that when preparing pleadings, all parties who are potentially liable should be included where a valid cause of action can be reasonably advanced. This applies equally in the arena of motor vehicle litigation. In this respect, Mr. Bakker also relied on the evidence of Mr. David Kolb, a Vancouver lawyer who practices in this area. He states that an owner of the vehicle in question is always named as a defendant arising from the statutory vicarious liability under the Motor Vehicle Act. He goes on to state that even if the car was purportedly stolen, it is wise to err on the side of caution and name all parties until further investigations are done to ensure that all facts are known before the owner is released from the litigation. He cites as an example, that while the driver/thief and the owner may have different names, further investigations may in fact reveal that they were related and resided together, in which case the owner would be liable even if a stolen vehicle is involved. There may also be issues of fraud or improper motive on the part of the owner who reported the vehicle as stolen. Until such facts as may establish liability are ruled out, it is a prudent practice to name the owner.
[53] In these circumstances, as a general proposition, I am of the view that Mr. Bakker was reasonable in naming Ms. Ang and GMAC as defendants to this action…
[77] In my view, and exercising my discretion, the granting of a Bullock order is appropriate in the circumstances but the order should be limited, similar to that which was ordered in Cominco at 212. Accordingly, Mr. Bakker is entitled to a Bullock order but only in respect of the costs incurred up to and including the examination for discovery of Ms. Ang on September 20, 2007. By that time, Mr. Bakker’s counsel had elicited sufficient evidence from Ms. Ang to be satisfied that she and GMAC had no vicarious liability and that there were no mechanical issues relating to the vehicle. Beyond September 20, 2007, I am unable to say that it would be just or fair to fix Mr. Nahanee with the costs of Ms. Ang and GMAC.
A short but useful analysis was set out in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of a tardy expert report.
In the recent case (Stanikzai v. Bola) the Plaintiff was injured in a 2007 collision. In the course of the claim the Defendant served a medical report but did so out of the time required by Rule 11-6(3). Mr. Justice Smith declined to exercise his discretion to admit the report under Rule 11-7(6) finding that the report “would not be of assistance in any event” noting the expert’s opinion improperly delves into credibility. Mr. Justice Smith provided the following reasons:
[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion. At trial, the defendant sought to enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not been served within the 84 day notice period required by Rule 11-6(3). I declined to exercise my discretion to shorten the required notice period and admit the report, largely because I found it would not be of assistance in any event.
[29] The essence of Dr. Ponsford’s opinion was that he was unable to provide a firm medical opinion because of what he regarded as inconsistencies and contradictions within the plaintiff’s history. Credibility is, of course, a matter for the court, not the expert witness.
Last week the Supreme Court of Canada released reasons for judgement discussing the standard of care for motorists driving near children.
In last week’s case (Anapolis County District School Board v. Marshall) the Plaintiff, who was 4 years old at the time, suffered “catastrophic” injuries when struck by a school bus. His case was dismissed at trial with a Jury finding the motorist was not negligent. The Nova Scotia Court of Appeal ordered a new trial finding the Judge’s charge to the Jury was confusing. The School Board appealed further and in a split decision the Supreme Court of Canada upheld the trial result finding the Judge’s charge to the Jury was appropriate.
The following passage was included in the Judge’s charge to the Jury addressing the standard of care when driving near children:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge. Justice Cromwell provided the following reasons:
The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms. Looking at the charge as a whole, this, in my respectful view, did not occur. The misdirection may have given rise to an injustice. I would therefore dismiss the appeal.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain caused by low back nerve root irritation.
In this week’s case (Stanikzai v. Bola) the Plaintiff was involved in a 2007 motor vehicle collision. The Plaintiff sustained various soft tissue injuries and in addition the crash caused persistent low back pain involving the Plaintiff’s S1 and sciatic nerves. The Plaintiff’s symptoms were expected to continue with the prognosis being “quite guarded“.
Mr. Justice Smith assessed non-pecuniary damages at $100,000 although reduced this amount by 15% to account for a “measurable risk” that the Plaintiff would have experienced similar symptoms even without the collision due to pre-existing factors. In arriving at this assessment Mr. Justice Smith provided the following reasons:
[24] Dr. Yu also believes the accident caused a low back injury that resulted in left sided sciatic pain with “obvious clinical signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff had pre-existing degenerative disc disease, but that is a very common condition and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on cross-examination that the plaintiff’s disc degeneration is severe for a person his age. Dr. Yu and Dr. Caillier also agreed that the disc degeneration put the plaintiff at increased risk for back pain and sciatica and that disc herniation and resulting pain can occur without any significant trauma…
[26] Dr. Caillier said that given the chronic nature of the plaintiff’s symptoms, he is likely to have ongoing low back and radiating leg pain as well as sensory disturbance and weakness in the left leg. Although she says some improvement may be possible with medication and a physical reconditioning program, his prognosis “remains quite guarded.” She said his ability to work will be effected by his low back symptoms and resulting limitations in “sitting, standing, lifting, carrying, bending, twisting, crouching, as well as any other impact activities.” She concludes:
It is my opinion that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August 25, 2007 have had a significant negative impact upon his future employability as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am also in agreement that there will be some longterm disability associated with his symptoms, whether he chooses to go forward with surgical or nonsurgical options.
[27] Dr. Yu said the plaintiff’s symptoms will likely “persist for the foreseeable future.” Although surgery could be performed to remove the bulging disc, Dr. Yu said even that is unlikely to provide complete relief.
[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion…
[31] The Defendants agree that the plaintiff suffered some injury, but say his spine was already in a severely degenerated condition and the accident only aggravated or accelerated that pre-existing condition. They also say there was a significant risk that condition would have detrimentally affected the plaintiff in the future even without the accident. Those are issues to be considered on assessment of damages. Based on the only medical evidence that is before me, I find that the plaintiff has a low back injury, with associated nerve root involvement, that was caused or contributed to by the accident.
[32] I also find that the plaintiff has experienced and will continue to experience low back pain. Based on his evidence and that of other witnesses, I find that he remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities, and that the pain significantly interferes with his quality of life…
[42] Apart from what I have found to be a real possibility of future back problems in any event, I find Majer and Crane to be the most comparable. Both cases involved ongoing and likely permanent back pain that, while not completely disabling, severely limited the plaintiff’s work and recreational activities. Both involved pre-existing conditions that were asymptomatic at the time of the accident, although the plaintiff in Crane had, like this plaintiff, a previous history of back pain. The court awarded non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.
[43] If I had not found the plaintiff to have been at significant risk for back problems, I would have assessed non-pecuniary damages of $100,000. In recognition of that risk, I apply 15 per cent reduction and assess non-pecuniary damages at $85,000.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision. Fault for the incident was admitted by the Defendant. The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial. While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome. In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:
[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.
[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.
[492] The question that remains is, what is the cause?..
[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.
[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.
[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…
12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.
[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.
[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.
In a good demonstration of the Court’s discretion following a trial where a Plaintiff does not beat a pre-trial defence formal settlement offer, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a Plaintiff’s post offer costs and disbursements away but not requiring the Plaintiff to pay the Defendant’s costs and disbursements.
In this week’s case (Tompkins v. Bruce) the Plaintiff turned down a pre-trial formal settlement offer of $950,000. Following trial the Plaintiff was awarded net damages of $851,437. ICBC applied for post offer costs. Mr. Justice Curtis found such a result would not be appropriate and instead took away the Plaintiff’s post offer costs and disbursements. In doing so the Court provided the following reasons:
[28] When the offer in this case was received on October 6, 2011, the plaintiff and his counsel were in possession of the information necessary to make a realistic assessment of the potential recovery. Naturally, there is no mathematical certainty in those matters and differing courts may give differing amounts. The plaintiff and his counsel would clearly have contemplated a range of possible recoveryies. The plaintiff, of course, hopes for the high end of the range and the paying party the low ? settlements are often made somewhere in between.
[29] The offer in this case was reasonable on the facts of the case as they were known to the parties. It could reasonably have been accepted as being within the range of possible recovery, although likely it would not have been thought by either party at the high end of the range. The amount of the Offer was reasonable as was its timing: the information necessary to assess the claim was in the possession of the parties, yet there was plenty of time to give careful consideration to the matter before the November trial date. On the other hand, Mr. Tompkins was seriously injured. He and his counsel’s view of the matter was that it was worthwhile going to court in the hope of getting a significantly higher award. It cannot be said that such a decision was unreasonable at the time.
[30] The purpose of cost consequences of reasonable offers is to encourage settlement. On the other hand, onerous cost penalties should not discourage the seriously injured from a proper hearing and a chance to obtain a higher award, nor should they seriously subtract from what the court has found is appropriate compensation for the injury.
[31] Considering the factors set out in the Rules, it is my opinion that the interests of justice are best served in this case by awarding Mr. Tompkins his costs and disbursements up to and including October 31, 2011, but disallowing them after that date, with the Third Party to bear its own costs. There is then a consequence for not accepting a reasonable Offer, but the consequence is not unduly punitive in the circumstances.
Today’s case is also worth reviewing for the Court’s discussion of various Part 7 Deductions following a tort action.