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Court Holds Diminished Capacity To Care For Loved Ones Not Forseeable Unless Care "taking place or contemplated" at the time of the tort

Written by admin on . Posted in Cost of Future Care Cases.

It is a well recognized principle that if a spouse needs to provide extraordinary services in caring for an injured loved one harmed by the negligence of others that this time can be compensated as an ‘in trust claim’ in the Plaintiff’s personal injury action.
What if the tables are turned, however, and the Plaintiff cares for a loved one but due to injuries to the Plaintiff he/she becomes unable to provide the care they otherwise would for their spouse?  The BC Court of Appeal released reasons for judgement, in a two one split, finding that such damages for such a loss are not ‘foreseeable’ unless they are taking place or contemplated at the time of the tort.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.   These had long term limiting consequences.  Subsequent to the collision the Plaintiff’s husband became ill.  The evidence proved that but for the injuries the Plaintiff would have cared for her husband.  The Court compensated the Plaintiff $30,000 for this loss.  In overturning this award, the BC Court of Appeal held it was not a foreseeable loss as this care was not “taking place or contemplated” at the time of the crash.  The majority provided the following reasons:
[31]         With respect, I disagree that the loss in this case reasonably could be foreseeable even under that standard. At its core, the award here is based merely on the fact that, at the time of the tort, the respondent and her husband were married with a possibility that at some future date the husband might require care of some kind. This did not make such care reasonably foreseeable at law. It might never occur: the respondent could die before care was required; the need for care might never arise; her surgery could eliminate the problem or diminish it significantly; or, her full-time employment may have eliminated or diminished her ability to provide care regardless of the accident. While plainly foreseeable as a theoretical, factual outcome in hindsight, this possibility was not a “real risk” in “the mind of a reasonable man in the position of the defendan[t]”.
[32]         In my view, the costs associated with caring for the respondent’s husband are too remote to be recoverable. As aptly stated by the Chief Justice in Mustapha, recoverability is based on reasonable foresight, not insurance.
[33]         The appellant also argued that even if damages were recoverable for the respondent’s diminished ability to care for her husband, as not too remote, as they were in Lynn, they would be recoverable under the heading of non-pecuniary damages and not as damages for loss of future care. I need not address this issue and leave it for a case in which it is engaged.
[34]         In my view, costs arising from the diminished ability to care for a disabled spouse of a plaintiff where no such care is required or contemplated at the time of the tort are not foreseeable at law; they are too remote.
[35]         I would allow this appeal and reduce the award of damages for the costs of future care by $30,000.
The decision also includes a well reasoned dissenting decision by Mr. Justice Donald which can be found starting at paragraph 36.
 

Non-Pecuniary Damages Discussed for Physical Injuries Complicated by Pre-Existing Psychological Issues

Written by admin on . Posted in ICBC Psychological Injury Cases.

It is a well worn principle that you take your victim as you find them when assessing damages for personal injuries in BC.  It is equally true that a defendant is not responsible for compensating an injured party beyond the injuries that they have caused.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with these principles in the face of chronic pre-existing psychological injuries.
In this week’s case (Carson v. Henyecz) the Plaintiff was injured after being struck by a vehicle being driven by her mother.  The Plaintiff sustained injuries that “essentially recovered…within a year of the accident”.  The Plaintiff, however, had a pre-existing “borderline personality disorder” and this caused for a prolonged recovery and with other complicating factors.  The Court grappled with this pre-existing injury, its effect on recovery and further on the fact that the Plaintiff’s symptoms at the point of trial would be largely similar even absent the collision.  In assessing non-pecuniary damages at $90,000 Mr. Justice Powers provided the following reasons:
[111]     I find that Ms. Carson had essentially recovered from her physical injuries within a year of the accident. I accept that she continued to have some pain for at least another year and still occasionally suffers pain from the injury. However, from a physical point of view she has made an excellent recovery. I am not satisfied that the shoulder complaints relate to the accident or were caused by the accident. In November of 2008, when she began to notice shoulder pain, the doctor’s evidence indicates that she had a full range of motion and was quite strong.
[112]     I do find that her pre-existing psychological or borderline personality disorder was a factor in the impact this accident had on her. These injuries and the circumstances of the accident had a greater impact on Ms. Carson than they would on somebody without her pre-existing psychological problems.
[113]     I also find that the necessity for narcotic medication to deal with the pain immediately after the accident and for at least a short time after also complicated and delayed Ms. Carson’s efforts to free herself from her prior addiction and abuse of pain medication. I find that the psychological impact of this accident also complicated her efforts to free herself from the pain medication and made it more difficult for her to do so.
[114]     However, the accident is not the cause of Ms. Carson’s ongoing problems. I am satisfied her ongoing problems, both psychological and physical, are as a result of her prior psychological problems. Given her complicated psychological history, I find that the accident has become the focus of and not the cause of her complaints. It is difficult to be precise about when the accident was no longer a significant contributing cause to her complaints. However, I am satisfied that within two to three years of the accident, and certainly by the time of the trial, the accident was no longer a significant contributing cause. Similar to the case of Wilson and the cases cited in that decision that I have referred to in paras. 105 and 106 of my reasons, Ms. Carson’s pre-existing condition was so dominant in her life and, based on the evidence I have heard, would have continued to dominate her life whether this accident occurred or not. Essentially she appears to be back to her pre-accident condition and it cannot be said that the accident is the cause of her present condition.
[115]     In considering all of the above, I find that the appropriate damage award for non-pecuniary damages is $90,000.00.

Plaintiff Stripped of Post Offer Costs and Disbursements For Failing to Beat Formal ICBC Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision.  Prior to trial ICBC made three formal settlement offers, the final being $222,346.  The Plaintiff rejected this offer and proceeded to trial.  A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000.  ICBC applied for post offer costs.  Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements.  Given that the trial lasted 10 days this is a significant financial consequence.  In finding this appropriate Mr. Justice Voith provided the following reasons:
[41]         There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.

$90,000 Non-Pecuniary Assessment for Onset of Pain in Pre-Existing Spinal Degeneration

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

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.

My 2012 Clawbies Nominations

Written by admin on . Posted in Uncategorized. 100 Comments on My 2012 Clawbies Nominations


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‘.
 

Plaintiff Compensated Two Years Salary for "Delayed Graduation" Claim

Written by admin on . Posted in ICBC Wage Loss. 100 Comments on Plaintiff Compensated Two Years Salary for "Delayed Graduation" Claim


Just as loss of wages are compensable in personal injury claims, if an injury delays a person’s entry into the workforce the law in BC recognizes that the financial repercussions that flow from this are recoverable.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this principle.
In last week’s case (Rezaei v. Piedale) the Plaintiff was injured in a 2009 collision.  Fault was admitted.  Due to the Plaintiff’s injuries she scaled back from intended full time courses to a part time course load at University.  As a result her graduation, and expected entry into the workforce was delayed by two years.  The Court addressed this by awarding damages equivalent to two years income.  In doing so Mr. Justice Voith provided the following comments regarding delayed graduation claims:
[87]         The plaintiff’s former high school principal, Mr. Li, testified that he recalled Ms. Rezaei and that she was a good student who was engaged in her high school. She was a likely scholarship candidate. He said that there was no reason she would not have been able to take a full course load at university and that most students with her academic background did. In her first and second terms of Grade 12, she had an 85% and 83.75% overall average, respectively. In her third term, after the Accident, her average was 53.25%. She ultimately graduated with a 78.1% average for her Grade 12 year. Both the plaintiff and Ms. Toghiani-Risi said that the plaintiff had expected to take a full course load when she went to university. I accept the foregoing evidence and consider that this was an entirely realistic expectation on the part of the plaintiff.
[88]         In the ensuing years at Simon Fraser University, the plaintiff has generally taken a part-time course load. She has often taken additional courses at the outset of an academic term only to later drop them. She has had to repeat certain courses to improve her grades. The details of what has happened from term to term are of no moment. The fact is that, at this point, her graduation has been delayed by at least one year and seven months, from May 2013 to December 2014. She requires 120 credits to graduate; she currently has 67 credits.
[89]         The plaintiff’s anticipated graduation date is premised on her taking and carrying a full-time course load henceforth, something she has not yet done. It is further premised on her studying in the summers, or at least part of them, and on being able to take the courses that she requires in the summer. If she is unable to graduate by April 2015, her plans to go to graduate school and obtain a Master’s Degree would be further delayed.
[90]         Ms. Rezaei presently plans to work in public health or health administration. The expert report of Mr. Peever, an economist, establishes that $35,000 per annum represents an average salary for the jobs that the plaintiff might be suited for when she graduates. No objection was taken to that figure.
[91]         The defendants sought to argue that the plaintiff could have made up some time by taking more courses in the summer. The plaintiff did say that she has, at times, chosen to work during the summer rather than study. She also said that she felt she needed a break. Dr. Frank has opined that “her persistence in schooling even though she was significantly disabled has been impressive”. Dr. Robinson stated that “[h]er accident related symptoms have been an impediment in pursuing her postsecondary education.”
[92]         Counsel for the defendants, in his submissions, said that he did not question the plaintiff’s efforts to reasonably mitigate her losses. Yet, the foregoing submission directly engages the issue of mitigation. The onus of establishing that a plaintiff has not acted reasonably to mitigate his or her losses falls on the defendant. In this case, the defendants have not satisfied that onus. I would also observe that this issue is somewhat artificial. Had the plaintiff gone to school during the summers, her summer wage loss claim would have increased. The amount that she originally anticipated earning while working at her mother’s daycare approximates the amount that she hopes to earn on graduation.
[93]         The plaintiff’s present claim, in conceptual terms, is supported by each of Pelkinen v. Unrau, 2008 BCSC 375 at para. 98; and Williams v. Nekrasoff, 2008 BCSC 1520 at para. 36.
[94]         The plaintiff’s graduation has already been delayed. I find this delay was caused by the Accident. I also consider that there is a real and substantial possibility that her graduation may be further delayed. I consider that a total delay of two years is likely for the plaintiff’s graduation. Accordingly, I award the sum of $70,000 for this head of loss.

$100,000 Non-Pecuniary Assessment For Disc Injury Requiring Discectomy

Written by admin on . Posted in ICBC Spine Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury caused as a result of a motor vehicle collision.
In the recent case (Peso v. Holloway) the 26 year old Plaintiff was involved in a 2007 collision where the Defendant backed into his vehicle.  The Plaintiff suffered from pre-existing “mild, non-disabling” low back pain.  Following the collision the plaintiff experienced significant low back pain ultimately requiring surgical intervention by way of a discectomy.  The Plaintiff remained symptomatic and the Plaintiff faced ‘significant risk of additional surgery‘.  The Court found the aggravation of the pre-existing condition was caused by the collision.  In assessing non-pecuniary damages at $100,000 Mr. Justice Wong provided the following reasons:
[70]         Regardless of Mr. Peso’s pre-existing condition, he was able to enjoy his life before the collision. He was able to perform ordinary household tasks, cook, and socialize with his friends and family. He had a long history of competing in competitive and recreational sports and was very active on the weekend trip to Osoyoos immediately before the collision. In addition to working at a physical job, he participated in renovation and building projects for his brother, putting in an estimated average of 12 hours a week.
[71]         According to Dr. Street, in the absence of the collision Mr. Peso would have likely continued to experience mild, non-disabling symptoms in his low back. As a result of the collision, Mr. Peso required surgery and faces a significant risk of additional surgery at some point in the future. He is limited in his capacity to perform some aspects of his work. His left leg is weaker than the right and his capacity to lift is diminished. Mr. Peso, a gifted athlete before the collision, is unlikely to return to anything close to his pre-collision level of activity.
[72]         Non-pecuniary damages ought to be assessed in the context of a young man who has sustained a permanent, life changing injury. It was clear from Mr. Peso’s testimony that he has not let his injuries stop him. He has persevered with school and actively hid his symptoms from his employer. He has tried all of his former activities but he has only been able to tolerate some successfully. It is clear that despite Mr. Peso’s determination he has real fears about his future. He worries about recurrence of pain and he worries he will be expected to perform tasks that he cannot do.
[73]         Mr. Peso suffered chronic pain disability and loss of recreational amenities for over a year until his December 2008 surgery. His scope of future recreational enjoyment will continue to be curtailed.
[74]         I fix pain and suffering with loss of amenities, past and future, at $100,000.

$16,000 Non-Pecuniary Assessment for Year Long Soft Tissue Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which occurred as a result of a so-called ‘low velocity‘ impact.
In this week’s case (Ram v. Rai) the Plaintiff was involved in a 2008 rear-end collision.  The crash resulted in little vehicle damage.  The Defendant testified that the impact involved  ‘very little force‘ although the Court rejected this finding that the Defendant’s version of events was “ internally inconsistent and generally unconvincing.“.  The court went on to find that the Plaintiff suffered a year long soft tissue injury.  In assessing non-pecuniary damages at $16,000 Mr. Justice Holmes provided the following reasons:
[47]         As I find, at the time of the accident Ms. Ram was an active and healthy young woman of 21 years of age, who was busily engaged not only in full-time post-secondary studies but also in two part-time jobs.  She had an active social life with friends that involved playing several different sports as opportunities presented.  She enjoyed gym workouts and doing workout exercise tapes at home.
[48]         As I find, the accident left Ms. Ram with throbbing pain in her back, neck, and head that became intermittent over time, with occasional numbness in her legs.  The pain in the various areas gradually resolved within a year, the back pain last of all.
[49]         The effects of the injuries caused Ms. Ram to miss work and some school during the few days or a week after the accident.  They made her withdraw from social activities over a longer term, so that she seemed to her family to be withdrawn and reclusive, no longer her bubbly self.  These effects resolved as her injuries resolved, within about a year…
[55]         On all the evidence, I conclude that the appropriate award for non-pecuniary damages in this case is $16,000. 

$60,000 Non-Pecuniary Assessment For Moderately Severe Tinnitus

Written by admin on . Posted in Uncategorized.


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.

Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

Written by admin on . Posted in Uncategorized. 56 Comments on Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

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.