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Turning Motorist Found Fully At Fault For Striking Pedestrian in Marked Crosswalk

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released yesterday by the BC Supreme Court, Kelowna Registry, assessing fault for a collision involving a vehicle and pedestrian.
In yesterday’s case (Culos v. Chretien) the Plaintiff was struck by a right hand turning vehicle as he was crossing a street in Kamloops BC.    The Plaintiff entered “a zebra crosswalk that was painted on the surface of Lorne Avenue at its intersection with 3rd Avenue.“.  At the same time the Defendant  was attempting a right hand turn onto Lorne Avenue.  Neither parties saw each other and a collision occurred.

The Defendant admitted fault but argued the Plaintiff was partly to blame for the collision.  In rejecting this argument Mr. Justice Rogers provided the following reasons:

[45] I accept the plaintiff’s evidence that he was at or very near the edge of the end of the sidewalk on 3rd Avenue when the unknown lady finished crossing Lorne Street and walked past him. I also accept the defendant’s evidence that she was stopped at the stop line on 3rd as she watched the same unknown lady finish crossing the street. Given those findings, it follows that at the same moment that the plaintiff was standing at the edge of the sidewalk on 3rd, the defendant was stopped at the stop line on 3rd. At that moment, the defendant’s car was behind the plaintiff and somewhat to his left.

[46] I find that when the unknown lady finished crossing Lorne, both parties began to move. The plaintiff entered the crosswalk. At the same time, the defendant moved into the intersection with her car angled to its right. The plaintiff carried on while the defendant stopped briefly at the thin white line painted across the extreme end of 3rd where it joins Lorne. Neither party saw the other. The defendant looked to her rear left to check for traffic on Lorne. At that moment, the plaintiff was established in the crosswalk and was directly in front of the defendant’s car. The defendant then began to move her car forward without first looking in the direction that she was traveling. In the result, the front of her car struck the plaintiff.

[47] The defendant’s submission that the plaintiff was contributorily negligent is superficially attractive – after all, her car was there to be seen. The presence of her car in the intersection at the same time that the plaintiff was in the crosswalk could be thought to constitute an immediate hazard for the plaintiff.

[48] The flaw in the defendant’s argument is this: the plaintiff was established in the crosswalk before the defendant got underway from her second stop to check for traffic. Had the plaintiff seen the defendant, he would have seen her move forward from the stop line, stop at the thin white line, and look back over her left shoulder to check for traffic on Lorne. Given his position in the crosswalk, the plaintiff was entitled to assume that a motorist would give way to him. He could only be found to be careless for his safety if he had stubbornly insisted on maintaining his right?of?way in the face of knowledge that an oncoming motorist was behaving in a way that indicated the motorist would not yield to him. Had the plaintiff been looking at the defendant, he would not have seen anything about her behavior that would have led him to believe that she would not yield to him. That is because he would have seen her move from the stop line on 3rd to the thin white line and stop again while looking over her left shoulder. No one in the plaintiff’s position would have had a reasonable suspicion that the defendant, whose driving up to that moment had been careful and considerate, would nevertheless go forward without first looking at where she was going.

[49] In short: the defendant’s behavior ahead of the collision was not such as to put a reasonable pedestrian in the plaintiff’s position on notice that the defendant was not going to yield to the pedestrian. That hypothetical pedestrian would have reasonably assumed that if the defendant was careful to check for traffic before entering Lorne, she would likewise be careful to look in front of her before she put her car in motion and moved out onto Lorne. Nothing in the evidence suggested that the plaintiff ought to have appreciated that the defendant would do as she did.

[50] Consequently, I find that the collision was entirely the fault of the defendant.

Worker Ordered To Pay $561,000 in Damages for Assaulting Former Supervisor

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases.

In a compelling illustration of the potential civil consequences following criminal behaviour, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a brain injury following an assault at over $561,000.
In the recent case (Weber v. DeBrouwer) the Plaintiff worked as a supervisor of the Defendant at the Village of Harrison Hot Springs.   The Plaintiff “suspended the defendant several times” and over the course of their overlapping employment “relations between the two worsened“.   In the summer of 2007 the defendant approached the Plaintiff as the Plaintiff was out for a walk and “brutally assaulted” him.
The assault led to various physical injuries including a mild traumatic brain injury and further led to ongoing psychological difficulties.  Global damages of over $561,000 were assessed with non-pecuniary damages assessed at $150,000.  In arriving at this figure Mr. Justice Greyell provided the following reasons:
[72] In this case, Mr. Weber was 49 years old at the time he was assaulted. The assault caused him significant injury and pain and suffering. He suffered facial injuries, including several fractures, dental injuries, bruising, rib and chest injuries, knee and hand injuries, soft tissue injuries to his back and neck, and a mild traumatic brain injury with ongoing cognitive and speech difficulties which took some time to resolve. Mr. Weber remains affected by depression, anxiety, and post traumatic stress disorder. He avoids confrontational situations…

[75] In the present case, Mr. Weber is now 54 years old. A number of his injuries, including his headaches, bruising and soft tissue injuries cleared up after several months. For a considerable time after the assault he was bothered with nightmares and had difficulty sleeping. He is left with a number of problems. He has difficulty with the alignment of his jaw; he still is clumsy and, while greatly improved, he has difficulty finding and pronouncing some words. Mr. Weber remains anxious and fearful of the defendant and avoids going places where the defendant might be. He avoids situations with guests at the motel where any type of conflict could arise, deferring to his wife to handle such matters. Dr. Smith says he will remain permanently impaired by symptoms of anxiety.

[76] Mr. Weber’s injuries and the residual effects of those injuries are significant, however, in my view, each of the cases cited by counsel for Mr. Weber involve circumstances where the injuries and residual effects to the plaintiffs were more significant. After a consideration of the factors outlined above in Stapley, I conclude $150,000 is an appropriate and fair amount to award for non-pecuniary damages.

Medical Record Relevance To Be Determined on Entry by Entry Basis

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


Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, finding that in the context of personal injury claims, the relevance of clinical records should be determined on an entry by entry basis.
In last week’s case (Hyvarinen v. Burdett) the Plaintiff claimed permanent physical disability as a result of a 2008 collision.  In the course of the litigation the Defendant requested various records the Plaintiff refused to produce.  A court application was brought resulting in mixed success with some of the withheld documents being ordered to be produced.  In adjudicating the matter Master MacNaughton provided the following sensible reasons addressing the vetting of irrelevent medical records:

[18] While I accept that when a document is produced by a party, it should generally be produced in its entirety, the exception is where a party is able to establish a good reason for a document not to be produced. In North American Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC), Justice Lowry, then of this court, reiterated the general principle but said:

…But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purposes in resolving the issues. (para. 13)

[19] In this case, there are two reasons why the general rule about redacted documents should not apply. The first is because the documents sought in unredacted form are not, although generally listed as such, single documents. Rather, they are a series of records compiled over time from a number of interactions with the plaintiff. These records should not be approached globally as if they were a single document. Each entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action.

[20] Second, and importantly in this case, the court must be careful not to unnecessarily infringe on the plaintiff’s privacy interests. Recently, in Kaladjian v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a plaintiff’s privacy interests in a personal injury action. He said:

Every individual’s health and the medical treatment of it is a personal and private matter that should not be lightly interfered with. In today’s world of medical specialization, disclosure of even the name of a medical professional consulted by an individual for reasons wholly unrelated to a defence plea of a prior existing condition is an unwarranted and unnecessary invasion of privacy. (para. 75)

$90,000 Non-Pecuniary Assessment for Labral Tear Requiring Surgery

Written by admin on . Posted in ICBC Hip Injury Cases. 118 Comments on $90,000 Non-Pecuniary Assessment for Labral Tear Requiring Surgery

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a hip injury sustained in a vehicle collision.
In yesterday’s case (Combs v. Moorman) the Plaintiff was involved in an “extensive” rear end collision in 2007.   The Defendant was found wholly at fault for the crash.  The Plaintiff, a 38 year old massage therapist, suffered a labral tear (a tear of the cartilage cushioning the hip socket).

This injury caused ongoing problems and needed future surgical intervention.  It caused limits in the Plaintiff’s domestic and vocational abilities.  In assessing non-pecuniary damages at $90,000 Madam Justice Humphries provided the following reasons:

[19] Pain in her left hip is her primary concern presently.  She says it is very painful and affects every treatment she gives.  The pain makes her put her weight on her right leg, and consequently her right leg has begun to hurt as well.  After an MRI, it was determined that she has a labral tear, that is a tear in the material cushioning her hip socket.  A bone scan showed some tenderness on the left trochanter, that is the top of the femur.

[20] Dr. Smit, Ms. Combs’ treating orthopaedic surgeon, recommended freezing injections into the hip and the trochanter respectively as a diagnostic device to determine where the pain was coming from.  That is, if one area were frozen and the pain continued, it would show that the source was the other area.  Dr. Smit said the injections give temporary relief, but symptoms would return in 6 – 8 weeks.  He said in “a distinct minority” of cases the pain does not return.  Ms. Combs declined this procedure…

[27] Ms. Combs was a straightforward witness.  She is obviously used to coping with life in a businesslike manner and does what she has to do.  She works hard, runs a successful clinic, and looks after two children and the home with the help of her mother, her mother-in-law, and her husband.

[28] Ms. Combs suffered fairly extensive injuries in this accident, some of which are permanent.  The hematoma in her knee and the damage to her finger, though not interfering with her activities, will not improve.  She deals with daily neck, back and hip pain and has done so for four years.  While surgery will likely improve her hip pain, it is not likely that her neck and back pain will resolve.  Her prognosis is poor.

[29] She still works long hours, but only with pain, and foregoes activities she used to enjoy in order to work those hours.  Her social life has been impacted because she is too tired to participate.  She cannot sit up on the bed and read to her daughter because of her back pain…

[33] I am of the view that it would have been helpful for Ms. Combs to have the injections for diagnostic purposes and for temporary relief.  Her failure to do so was unreasonable, but although some of her pain may have been relieved temporarily by this procedure and diagnosis of the source of the pain would likely have been facilitated, failure to undergo this procedure does not affect any long term outcome.  Dr. Smit said the cases in which pain does not return after the injections are “a distinct minority”.  In any event, Ms. Combs must still face hip surgery, and according to the medical evidence, delay in having the surgery does not affect its success rate.  Her refusal to undergo months of recovery from surgery while running a busy practice and taking care of young children is simply a matter of weighing how much pain she could cope with and still carry on.  I cannot see her refusal to have the surgery until now as unreasonable.

[34] Obviously each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are inherently individual.  The cases cited by the plaintiff involve considerably more severe and wide ranging symptoms that Ms. Combs has.  The cases cited by the Third Party involve symptoms that resolved faster than Ms. Combs’ have.  She is not a complainer, but four years post accident, she is still coping daily with its effects and now has to undergo the surgery and recovery time.  The effect of the chance of the early onset of arthritis in the distant future is not great, given the scant evidence that it is likely to occur.

[35] Considering the evidence and the cases cited to me, I set non-pecuniary loss at $90,000.

The Mystery of the Vanishing Blog Posts…

Written by admin on . Posted in Uncategorized.

If you regularly follow this blog you may have noticed my burst of activity today is nothing more than a re-posting of a handful of articles I published earlier this week.  Apparently my web hosting company experienced  a server problem resulting in several lost posts.  Fortunately, thanks to some quick help from Steve Matthews of Stem Legal I was able to retrieve (and repost) these lost articles.
To my frequent readers, sorry for the re-posts.  To Steve, thank you!

Vancouver Jury Awards Canadian National Boxing Champion $1,023,000 In ICBC Claim

Written by admin on . Posted in ICBC Hand Injury Cases, Jury Trials.

While an injured hand would effect most individuals in a negative fashion the consequences can be far more severe depending on the nature of your occupation.  Illustrating that an injury’s valuation largely depends on the unique circumstances of a Plaintiff, a recent Vancouver Jury verdict valued a Boxer’s ICBC claim involving a right hand injury at just over $1,000,000.

In the recent case (Albert v. Politano) the Plaintiff Jegbefumere ‘Bone’ Albert was involved in a 2008 collision.  He was a professional cruiser weight boxer at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic right hand injury.  This injury flared with training/fighting.  The Plaintiff had 3 more professional contests post crash and despite his hand injury he won all these contests.  The chronic nature of the injury, however, interfered with his abilities and required the Plaintiff to take early retirement in 2009 at the age of 29.

After a 5 day trial before Mr. Justice Greyell the Vancouver Jury awarded the Plaintiff just over $1 million for his losses including the following damages:

Non-Pecuniary Damages: $125,000

Past Diminished Earning Capacity: $60,000

Future Diminished Earning Capacity: $868,000

As with all Jury verdicts, there are no ‘reasons for judgement’ to publish.  I would like to thank Vancouver lawyer John Cameron for sharing this result with me for publication on this blog.

50/50 Liability Split For Intersection Crash On Amber Light

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection crash involving a left hand turning vehicle and a through vehicle on an amber light.

In yesterday’s case (Tan v. Nenadic) the Plaintiff was a passenger on a motorcycle.  There were two designated turn lanes and two through lanes in their direction of travel.  They were travelling in the right hand through lane.  As they approached an intersection their light turned amber.  Vehicles in the lane to their left stopped but the motorcycle continued into the intersection.  At the same time an on-coming BMW was committing a left hand turn resulting in collision.  Mr. Justice Wong found both driver’s equally to blame.  In doing so the Court provided the following reasons:

] Mr. Kwong was driving a black 2001 BMW 330Ci convertible automobile eastbound on 49th Avenue, intending to turn left to go northbound on Boundary to attend his place of employment.  He had entered the intersection, stopped to wait for oncoming traffic to clear, before commencing his left turn.  Oncoming westbound traffic in the left travelling lane came to a stop when the light changed to amber.  It is unclear how many stopped vehicles were in that lane, but at least two to three, possibly more.

[8] Clear visibility of the right westbound travelling lane would likely be obscured by the line of stopped vehicles in the left westbound travelling lane for Mr. Kwong.  Mr. Kwong proceeded to make his left turn in one continuous sweep over the left westbound travelling lane, and proceeded halfway into the right westbound travelling lane, when he was struck by Mr. Nenadic’s motorcycle approaching from the east.  The car and motorcycle collided in the intersection.  The motorcycle went straight into the right front corner of the BMW, throwing Ms. Tan and Mr. Nenadic from the motorcycle.  There was considerable damage to the BMW.  Mr. Kwong apparently did not see Mr. Nenadic’s motorcycle until just before the impact…

[11] Like my late colleague, Mr. Justice Edwards, factually I have also concluded that both defendants were equally at fault.  Mr. Nenadic should have approached the intersection with more caution in order to be able to stop safely.  Mr. Kwong failed to take into account the manifest hazard in the case of Mr. Nenadic’s approaching motorcycle speeding towards him.  Had he paused for a better look before entering the right westbound oncoming lane, instead of casually continuing on, he would have avoided the collision.

[12] Accordingly, all defendants were equally culpable in fault.

$40,000 Non-Pecuniary Assessment For Fractured Hand With “Triggering”

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

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hand injury sustained in a motor vehicle collision.

In yesterday’s case (Sandher v. Binning) the Plaintiff was injured in a 2009 head-on collision on the Fraser Highway.  The Defendant admitted fault for the crash focussing the trial on the assessment of the Plaintiff’s damages.

The Plaintiff was a 35 year old construction labourer.  The collision caused closed fractures of his middle and ring finger metacarpals.

These went on to cause weakness and lack of grip in his right hand.  Eventually the Plaintiff developed triggering (causing the fingers to become stuck in the flexed position).  Surgery to treat this condition was not entirely successful.  This caused some restriction in the plaintiff’s vocational abilities.  In assessing non-pecuniary damages at $40,000 Madam Justice Fenlon provided the following reasons:

[21] Mr. Sandher experienced the pain of fractured bones, the inconvenience of a cast for several weeks, pain following tenoplasty surgery, ongoing hand pain and stiffness, and pain from soft tissue injuries. The soft tissue injuries largely resolved within six months of the accident with occasional flare-ups on heavy activity; I find for the following reasons that those flare ups and hand symptoms have had a relatively small impact on his day-to-day life, social activities and general enjoyment of life.

[22] In relation to the impact of the injuries on his recreational activities, the plaintiff claims that he is unable to lift weights, something the plaintiff said in his direct-examination that he did four to five times a week. However, in cross-examination, he conceded that before the accident he only lifted weights at most two to three times a week when he could find time after work. In addition, the plaintiff now has two young children, and he has less time and energy to spend at the gym, quite apart from the impact of his injuries.

[23] The other recreational activities the plaintiff claims have been affected by his injuries are walking and camping. Although Mr. Sandher continues to engage in those activities, he testified that he may walk and camp less often now than before the accident. Again, the plaintiff conceded that he does not have the same amount of time to do these activities because of his young family and the fact that he is often tired after returning from work.

[24] There was some evidence to suggest a loss of ability to do outdoor work. The plaintiff described helping his cousin Narendra Riar enclose an area below an upper level patio before the accident. That involved clearing weeds and leveling the area as well as lifting and carrying heavy paving stones, work Mr. Sandher did without difficulty. Mr. Riar and Mr. Sandher contrasted that occasion with his inability at the end of February or early March 2011 to help his cousin do similar work constructing a shed. Mr. Riar testified that the plaintiff had difficulty carrying the wood for the shed and was unable to use a hammer due to his hand injury. However, under cross-examination Mr. Sandher agreed that he had undergone tenoplasty surgery for his trigger finger only a week or two before trying to help Mr. Riar with the shed…

[27] Taking into account the differences between the plaintiff’s situation and the fact patterns in the cases relied on by the parties, I am of the view that the plaintiff should be awarded $40,000 in non-pecuniary damages…

[38] I find that the plaintiff has proved on a balance of probabilities that the injuries he sustained to his dominant hand, as well as the recurrent flare-ups of soft tissue injuries on heavy activity, have impaired his ability to work as a framer.

Withdrawn Formal Offer Still Effective In Triggering Double Costs

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

In my continued efforts to track the judicial shaping of Rule 9-1, reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, ordering double costs following trial where a Plaintiff bested a withdrawn formal settlement offer.

In the recent case (Bartel v. Milliken) the Plaintiff was injured in a 2008 collision.  Prior to trial the Plaintiff delivered a formal settlement offer of $29,800.  This offer was withdrawn after trial but before judgement.  The trial ended in March of 2012 and judgement was delivered in April.  The judgement exceeded the Plaintiff’s formal offer by abot $9,000.  The Plaintiff applied for post offer double costs.  The Defendant argued these should not be awarded since the offer was withdrawn.  Madam Justice Gerow rejected this argument and awarded post-offer double costs.  In doing so the Court provided the following reasons:

[15] As stated earlier, the defendants submit the fact that Ms. Bartel withdrew her offer after trial is a factor which weighs against the awarding of double costs because it deprived the defendants of the ability to accept the offer at a later date as contemplated by the rule.

[16] However, at the same time the defendants concede that the intention and spirit of the rule governing formal offers to settle is to avoid the cost of a trial. In my view, the fact that Ms. Bartel withdrew her offer to settle between the time the trial ended and judgment was rendered is not a factor that weighs against an award of double costs.

Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

Written by admin on . Posted in Damages for Charter Breaches. 52 Comments on Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether the monetary penalties paid via BC’s Charter violating impaired driving scheme need to be repaid.

Last year Mr. Justice Sigurdson struck down BC’s aggressive drunk driving law finding BC’s ARP scheme unjustifiably violated individuals section 8 Charter rights.  In today’s judgement (Sivia v. Superintendent of Motor Vehicles) the Petitioners asked the Court to reimburse “all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee.”

Mr. Justice Sigurdson refused to grant this remedy holding as follows:

[114] I have found that the petitioner’s argument that the declaration of invalidity under s. 52 should have retroactive effect, must fail.  The decision in Sivia #1 that parts of the ARP regime violated s. 8 of the Charter and were, therefore, unconstitutional, represented a substantial change in the law as described in Hislop.  Further, the additional Hislop factors, on balance, weigh in favour of a prospective only application of the declaration.

[115] Although the prospective declaration of invalidity answers the majority of the petitioner’s additional or alternative claims, I have further found that even when assessed independently, the petitioner’s additional or alternative claims must also fail.

[116] With respect to the petitioners’ contention that they are entitled to Charter damages under s. 24(1), I have found that it would not be “appropriate and just” to order such damages as the government, in adopting the ARP regime and applying it to the petitioners and collecting monies from them, did not engage in any misconduct or bad faith actions.

[117] With respect to the arguments that the monies were collected under an invalid law enacted in bad faith, and with respect to the claim for restitution of the monies collected on the basis of the principle of unjust enrichment, I have found that the doctrine of qualified immunity provides a complete defence to both of these claims.

[118] With respect to the argument that certain of the monies collected represent taxes which were unlawfully collected, I have found that those monies are regulatory charges, not taxes, and are not recoverable under theKingstreet decision.

[119] Finally, I have found that as a result of the prospective only application of the declaration of invalidity, any petitioner with any outstanding fees, penalties or suspensions is still subject to paying/serving such fees, penalties, and/or suspensions.

[120] For these reasons, I have concluded that the petitioners are not entitled to the personal and monetary remedies that they seek.  The parties may arrange to appear before me to discuss the issue of costs, or if they agree, they may file written submissions on that issue.