If a road maintenance company unreasonably fails to maintain a road for which they are responsible they can be held civilly liable for resulting harm. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, discussing the complex nature of such claims finding that such cases clearly require expert evidence to succeed.
In last week’s case (Collins v. Rees) the Plaintiff was injured in a 2005 collision when she lost control of her vehicle colliding with the side of the Massey Tunnel and was then struck by another vehicle. She sued the contracting company responsible for maintaining that stretch of roadway arguing they failed to take proper steps to prevent the build up of ice.
Mr. Justice Williams noted that the claim must fail as there was no evidence to prove icy conditions caused the loss of control but further that cases such as this cannot succeed without expert evidence addressing the standard of care. The court provided the following comments:
[36] With respect to the issue of standard of care, I can find nothing in the record which could be said to constitute evidence going to prove the applicable standard of care of the defendants. To find that on the evidence before this court would require guesswork and speculation. I am unable to infer that standard from the evidentiary record. [37] Inference is the exercise of reaching a logical conclusion by reasoning from proven facts. Here, the proven facts from which the inference could be drawn are not present. [38] Insofar as applying my own knowledge of every day matters, that would not be an appropriate way to deal with this issue. Decisions as to the proper steps, measures and procedures to sign and maintain a highway system in a large metropolitan community are undoubtedly complex things. I am sure that engineers have spent their entire lives working on those very issues. The same applies with respect to issues such as drainage and vapour barriers. It is not reasonable to expect that a trial judge, as a layperson, will draw the inferences to establish this element. It is clearly a matter that requires expert evidence. [39] Accordingly, I find the plaintiff has adduced no evidence with respect to the element of the applicable standard of care and, as well, the issue of the defendants’ failure to meet that standard of care and that, therefore, the defendants’ applications must succeed.
One practice that has arisen since the new rules of court were introduced a few years ago relates to parties occasionally slotting actions into the fast track rule when the case is not suitable for fast track litigation. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this practice finding that a Plaintiff’s claimed damages (as opposed the Defendant’s perceived valuation) is a driving force.
In last week’s case (Narain v. Gill) the Plaintiff was injured in a motor vehicle collision. In the early stages of litigation ICBC filed a Notice of Fast Track. Prior to trial the Plaintiff made a formal settlement offer of $200,000 and the Defendant provided a formal offer of $102,500. Following trial damages of $116,737 were assessed. At issue was the appropriate costs award. Mr. Justice Meiklem had to decide whether the Notice of Fast track made the lesser Rule 15 costs scale applcable. In deciding that the plaintiff’s valuation is a driving factor the court provided the following reasons: [12] Counsel for the third party argues that the plaintiff was notified that the third party considered this to be under Rule 15-1 with the filing of the notice and a matter is only removed from fast track by court order, either by the court on its own motion, or the application of any party and the court so orders, as provided by Rule 15-1(6)… [17] As I read Rule 15-1(2), the simple filing of a notice of fast track action in form 61 does not turn any action into a fast track action; rather, any party may file such notice “if this rule applies to an action” [my emphasis]. It is Rule 15-1(1) that defines when the rule applies, and it is important to note that the monetary criteria set out in subrule (1)(a) depends on the total amount of money claimed by the plaintiff for pecuniary loss and to be claimed by the plaintiff for non-pecuniary loss. [18] Counsel for the plaintiff in the case at bar communicated to counsel for the third party his belief that the claims being advanced exceeded the $100,000.00 limit. After that communication, there was no insistence on the action proceeding as a fast track action, and it would be reasonable to infer from third party counsel’s subsequent conduct in not adding the required notation to subsequent filings, agreeing to an extension of the trial estimate to five days and making a formal offer exceeding the $100,000.00 limit, that third party counsel had tacitly agreed with plaintiff counsel’s view that this was not an action to which Rule 15-1 should apply. [19] In short, I do not view the failure to add the required notation to the style of cause as an irregularity curable by amendment in order to conform to reality, as was done in the Foster case. This is not an action in its infancy that would benefit from an amendment making it clear that it is subject to Rule 15-1. This action was never clearly within the definition set out in Rule 15-1(1), and the filing of a form 61 notice did not change that. [20] That being said, hindsight will hopefully instruct counsel to clarify opposing counsel’s intentions, and, if necessary, seek an order by consent or otherwise to avoid similar circumstances arising in the future.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries caused by a Low Velocity Impact.
In last week’s case (Naidu v. Gill) the Plaintiff was involved in a 2008 rear-end collision. The crash resulted in little vehicle damage. The Plaintiff alleged he had injuries caused by the crash which were on-going at the time of trial. The court found that the plaintiff was an “unreliable historian” and did not accept that the Plaintiff’s ongoing complaints were related to the crash. The Court did, however, accept that the crash caused a modest soft tissue injury which resolved 4 months following the collision. In doing so Mr. Justice Kelleher provided the following reasons: [36] Mr. Naidu suffered soft tissue injuries in the 2008 motor vehicle accident. The injuries were not severe. It is significant that no prescription medication was suggested or prescribed; Mr. Naidu has been able to work throughout the period since then. No report of an injury was made to ICBC for over a year. Mr. Naidu was able to travel to Asia on three occasions in 2010. Mr. Naidu made three visits to a physician in early 2009 and made no mention of pain symptoms from the accident. Finally, while the extent of the damage to the vehicle is not determinative for the reasons I just explained, it is not irrelevant that the damage to the vehicle was minor. [37] The evidence does not establish causation for the symptoms persisting past approximately January 2009. It is at least equally likely that the symptoms which resulted in his complaints in April 2009 and September 2009 were caused by physically demanding work as a security guard… [39] I conclude that the symptoms from the September 2008 accident persisted into early 2009. The plaintiff has not discharged the onus of proving that his symptoms since that time were caused by the accident. I have reviewed a number of authorities including Bagasbas v. Atwal, 2009 BCSC 512; Gradek v. Daimler Chrysler Financial Services Canada Inc., 2009 BCSC 1572; Ostovic v. Foggin, 2009 BCSC 58; and Ceraldi v. Duthie, 2008 BCSC 1812. [40] An award of $4,000 is appropriate.
Adding to this site’s archived caselaw addressing fault for collisions involving jaywalking pedestrians, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an impact.
In last week’c case (Sandhu v. John Doe) the Plaintiff was attempting to cross a four lane road way. She was not crossing in a designated crosswalk. The vehicles in the curb land came to a stop and the lead motorist motioned for her to cross. As she proceeded into the second lane she was struck by the Defendant motorist.
The Plaintiff sued the motorist that struck her and also the motorist that signalled for her to cross. The Court dismissed the claims against the latter motorist and further found that both the Plaintiff and the motorist that struck her were at fault for the impact. In assessing 75% of the blame on the Plaintiff Mr. Justice Bowden provided the following reasons: [18] In my view, as the plaintiff was not crossing the road in a crosswalk, the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the same time, Ahmed was required to exercise due care to avoid colliding with a pedestrian on the highway. [19] I find that the plaintiff was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which the defendant Ahmed was travelling, without looking to determine if a vehicle was approaching before entering that lane. [20] The defendant Ahmed was also negligent in passing two stopped vehicles when the possibility of a pedestrian attempting to cross was reasonably apparent, even if he believed that the vehicles were also intending to turn into the mall after they stopped. [21] In my view, no liability attaches to John Doe. There is no evidence that the plaintiff made any attempt to locate John Doe. Even if he had been located, the mere act of indicating to the plaintiff to cross in front of his vehicle, in my view, would not attract liability nor relieve the plaintiff of her duty of care… [25] Considering the conduct of the plaintiff and the defendant Ahmed and the surrounding circumstances, I have concluded that a reasonable apportionment of liability is 25% to the defendant Ahmed and 75% to the plaintiff.
In 1998 the Supreme Court of Canada held that failure to disclose HIV positive status could vitiate consent making otherwise consensual sexual encounters criminal in nature and further exposing the non-disclosing party to civil suits for damages for sexual assault. This reasoning has been controversial over the years and the Supreme Court of Canada revisited the issue in reasons for judgement released today.
In today’s case (R v. Mabior) Chief Justice McLachlin held that failure to disclose can still vitiate consent but not in all circumstances adding a “significant risk” factor to the analysis. The Court provided the following reasons: [104] To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used. However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play.
In my continued efforts to highlight judicial scrutiny of expert testimony in BC injury litigation, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, finding an expert “displayed a somewhat compromised objectivity” and that it was “unsafe” to rely on his opinion.
In this week’s case (Smith v. Moshrefzadeh) the 54 year old plaintiff was injured in a rear end collision in 2008. As a result she suffered from soft tissue injuries to her neck and shoulders which caused chronic headaches. At trial the Defendant produced an orthopaedic surgeon who provided opinion evidence that the probability that the crash resulted in the chronic symptoms was “negligible“. Madam Justice Dardi did not accept this evidence and provided the following critical comments: [62] I accept the opinions of Dr. Helper, Dr. Robinson and Dr. Craig and, where they differed, I prefer their opinions to that of Dr. Wahl. I found each of Dr. Robinson, Dr. Helper, and Dr. Craig, who are very well-qualified and experienced practitioners, to be careful and fair-minded in their testimony. Their opinions, without exception, were not weakened in cross-examination. Each of the doctors persuasively discounted Dr. Wahl’s opinion that the degeneration of Ms. Smith’s cervical spine shown on her x-rays is the cause of her current symptoms. While Dr. Wahl is no doubt a well-qualified orthopaedic surgeon, his practice is focused on the surgical management, not the medical management, of the spine. Dr. Wahl clearly had not reviewed Ms. Smith’s medical records as carefully as the other expert witnesses and as I mentioned earlier his report was predicated on a misconception as to the timing of the onset of Ms. Smith’s symptoms. Given the significant concessions he made in cross-examination and the Court’s impression that he displayed a somewhat compromised objectivity in preparing his report, I consider it unsafe to rely on his opinion.
In assessing non-pecuniary damages at $80,000 the court provided the following reasons: [65] In summary on this point, Ms. Smith’s chronic headaches and neck and upper back pain and discomfort which were caused by the accident have persisted for some three and a half years. She experiences episodic flare-ups. The pain fluctuates in intensity and is aggravated by physical activity. Ms. Smith’s symptoms are exacerbated by the physical demands of the commercial salmon and herring fisheries. She can no longer engage in the prawn fishery. She has constant and daily headaches which vary in intensity. The headaches are usually of a mild to moderate severity, but at least a few times per week they become severe enough that she needs to rest in a quiet environment. For the most part, however, even though she describes feeling like she is “hanging on by a thread”, she forces herself to carry on with her fishing work and with maintaining her household routines and family life. In order to carry on, she takes prescription medication on a daily basis. [66] There is a possibility that, by undertaking the treatments recommended by the specialists who testified at trial, Ms. Smith will experience some improvement in her symptoms and will be able to manage her pain and discomfort more effectively. However, I find that it is unlikely that she will make a full recovery to her pre-accident status… [76] I have reviewed all of the authorities provided by both counsel. Although the cases are instructive, I do not propose to review them in detail as they only provide general guidelines. In broad terms, the cases relied upon by the defence involve plaintiffs with symptoms that had significantly improved by trial. In considering Ms. Smith’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.
The current judicial cap for non-pecuniary damages in Canada for negligently caused injuries rests at just over $342,000. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing whether such an assessment was appropriate for a severe traumatic brain injury coupled with multiple orthopaedic injuries.
In last week’s case (Clost v. Relkie) the Plaintiff was involved in a 2009 collision described by the trial judge as “a shocking scene of mayhem”. The Plaintiff suffered a severe traumatic brain injury and multiple bone fractures These disabled her for life from her own occupation as a pharmacy technician. The Plaintiff’s limitations were profound enough that a Committee was appointed to manage her affairs. Despite this she made a satisfactory recovery to the point where she gained a fair level of independence in her daily life. In assessing non-pecuniary damages at $300,000 Madam Justice Baker provided the following reasons: [437] Ms. Clost is seeking an award for non-pecuniary damages at the upper limit set by the Supreme Court of Canada. Counsel agreed the upper limit, adjusted for inflation, was $342,500 at time of trial. The defendants submitted that an award of $175,000 to $225,000 would adequately compensate Ms. Clost for the pain, suffering, and loss of enjoyment of life caused by the accident injuries. [438] The submissions made by counsel largely focused on the issue of whether Ms. Clost’s injuries should be characterized as “catastrophic” ? the term most often used by judges who have awarded the upper limit for non-pecuniary damages. The plaintiff says “catastrophic” is merely a synonym for “severe” or “devastating”; the defendants submit that given the significant recovery Ms. Clost has made, particularly in relation to her cognitive functioning, the injuries have not had a “catastrophic” impact on her life… [442] Ms. Clost does not, as did many of the plaintiffs in the cases referred to by plaintiff’s counsel, require constant supervision for her own protection. She continues to enjoy a considerable degree of independence and to exercise control over most aspects of her life. She has returned to living in her own home. She is able to do most activities of daily living without assistance. She is entirely capable of bathing, toileting, dressing and feeding herself. She can walk, she can swim, she can drive, she can use a computer; she can cook, she can bake, she can shop ? for necessities and for enjoyment. She goes out to the library; for lunch and visits with friends. She can still do many household and outdoor chores although there are also some she cannot do or can only do in a modified way or with assistance. She has continued to manage her own finances, taking care of banking and bill-paying on-line, as she did before the accident. She has not demonstrated a propensity to engage in behaviours that make her a danger to herself or others, as was the case with the plaintiffs in Spehar andCoulter. [443] I am of the view, however, that Ms. Clost has experienced pain, suffering and loss of enjoyment of life and will continue to experience losses for which she is entitled to very significant compensation and to an award above the range suggested by defendants’ counsel. Having considered the various authorities, I have concluded that the appropriate award for non-pecuniary damages in this case is $300,000. [444] I have already reviewed the evidence of Ms. Clost’s numerous serious orthopedic injuries and the details of the injuries to her brain. She was in a coma for a month and only gradually returned to consciousness. She has a gap in her memory of events for some period before and after the accident. She required two major orthopaedic surgeries within the month following the accident to repair numerous fractures. I have concluded she will require at least one and possibly more surgeries in future to fuse the joint in her left foot and ankle; to remove hardware in the ankle and possibly in her wrists as well; and a possible ankle replacement surgery. Her orthopedic injuries caused her considerable pain; and she was essentially confined to a hospital bed and unable to bear weight or to walk for several months. There was a period during which she was unable to use her arms due to injuries to her arms, wrists and hands. [445] In total, Ms. Clost was confined to one type of hospital or another for five months following the accident. Her rehabilitation was ongoing at time of trial. She continues to have pain or discomfort in many parts of her body. She has frequent headaches. The most significant and frequent sources of pain are her left foot and ankle; she also has swelling there and the injury disables her from walking or standing for extended periods of time. Although a fusion of the joint may reduce the amount of discomfort she experiences, the medical opinions I accept indicate that she is unlikely to be pain-free. At time of trial she still needed to take strong medications to control her pain and to help her to sleep.
As previously discussed, although a driver can sometimes be faultless after rear-ending another vehicle, such a result is rare. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a motorist trying to escape blame following a rear end collision.
In last week’s case (Vo v. Michl) the plaintiff pulled onto Kingsway from a parked position and proceeded to to the left hand lane. At the same time the Defendant was proceeding in the same direction and saw the Plaintiff pull into his lane and brake ‘some four or five seconds’ before the vehicles impacted. The Defendant argued that he could not avoid the collision due to icy road conditions. Mr. Justice Savage rejected this argument finding the Defendant was aware of the poor road conditions well prior to the impact and should have adjusted his driving accordingly. In finding the Defendant fully liable for the impact the Court provided the following reasons: [16] I accept that Mr. Vo had his left turn signal on at that point which was his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes but because of the road conditions did not slow appreciably before impact. The road conditions were apparent to him as he had been driving in those conditions. He knew it was icy. This is not a case, for example, of their being a patch of “black ice” in otherwise deceptively benign conditions, as was the case in Borthwick v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.). [17] Mr. Michl was negligent in driving too quickly for the road conditions in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in turning onto Kingsway were sudden and precipitous, as in some of the other cases referenced by the defence. [18] The defendant raises s. 151(a), and 170 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations, B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the position of the westbound traffic before he made this turn from the parked position onto Kingsway, and the westbound vehicles were well back at that point. The defence has said all that could be said to support their position, however, in my opinion Mr. Michl is 100% to blame for the accident.
Rule 8-5 of the BC Supreme Court Rules allows an application to be brought on short notice in cases of “urgency”.
A transcript of proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me denying a short leave application in a case of “manufactured urgency”.
In the recent case (Thuler v. Garcia) the Plaintiff was injured in a motor vehicle collision. The Plaintiff exchanged various expert reports in compliance with the timelines set out in the Rules of Court. The Defendant requested that the Plaintiff attend a Defence Medical Exam with an orthopaedic surgeon to obtain a responsive report. The Plaintiff refused to attend unless compelled by the Court.
The Defendant brought a short leave application two days before the scheduled Defence Medical Exam seeking permission to bring the main application that same day. The Plaintiff opposed short leave being granted arguing “the reason that I say that this is manufactured urgency is that there is six weeks in order to have a response report prepared. If it is the case that the plaintiff is eventually ordered to attend that independent medical exam, then there is no reason that this couldn’t be brought within the normal timelines”
When pressed on the point of urgency the defendant countered that “It’s urgent in the sense that we would like to just get it done.”
Mr. Justice Silverman agreed no urgency existed and dismissed the short leave application. In doing so the Court provided the following comments to the Defendant:
“All right. I’m against you on that…In my view, it’s not urgent. You’ve got enough time to do it by giving appropriate notice. The matter can be heard on that basis. It may well be you’ll still be entitled to your order if the plaintiff is not willing to go, but in my view, it’s not urgent to require short leave so that I am denying that application“.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.
I’m proud to announce that this site has now grown to over 1,500 posts. Thank you folks for your continued readership which makes this effort worthwhile!
