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Pedestrian Struck on Road at Night Found 90% at Fault for Crash

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 51 Comments on Pedestrian Struck on Road at Night Found 9051 at Fault for Crash

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault in a pedestrian collision case.
In today’s case (O’Connor v. James) the Plaintiff was walking along No. 6 Road in Richmond, BC, when he was struck by the Defendants vehicle.  The Plaintiff consumed some alcohol before the collision and was struck while he was walking on the actual roadway (as opposed to the shoulder) at the time of impact.  As a consequence the Court found that the Plaintiff was in breach of various provisions of the BC Motor (Vehicle) Act.
Specifically, Mr. Justice Burnyeat made the following findings of fact with respect to this accident:
[22] It was the consensus of all witnesses that Mr. O’Connor was dressed entirely in black that night and was wearing no reflective clothing.  I also find that the approaching vehicle driven by Mr. Hockley had the low beams activated.  I also find that the street light at the corner of No. 6 Road and Triangle Road was not operating.  Taking into account all of the evidence, I find that Mr. O’Connor was on the road surface, and not on the grass median beside the southbound lane of No. 6 Road when he was hit….

[23] I accept the evidence of Ms. Journeau, Mr. Hockley, Ms. Kamayah, and Mr. James that Mr. O’Connor was in the southbound lane of No. 6 Road when he was hit by the vehicle driven by Mr. James.  I find that it would have been impossible for the collision to have occurred on the grassy median and for the vehicle driven by Mr. James to have come to rest where it did if the contact with Mr. O’Connor had been on the grassy median.  Walking where he was walking, Mr. O’Connor violated a number of provisions of the Motor (Vehicle) Act, R.S.B.C. 1996, c. 319:

179      (2)  A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way.

182      (1)  If there is a sidewalk that is reasonable passable on either or both sides of a highway, a pedestrian must not walk on a roadway.

(2)  If there is no sidewalk, a pedestrian walking along or on a highway must walk only on the extreme left side of the roadway or the shoulder of the highway, facing traffic approaching from the opposite direction.

[35] From the evidence, I make the following findings:  (a) the temperature that night in the area approached the freezing point; (b) the road surface was either icy or covered with dew as a result of the new-freezing atmospheric conditions; (c) the posted speed limit on No. 6 Road is 50 km/h; (d) the vehicle being driving by Mr. James was travelling at somewhere between 55 km/h and 65 km/h that night; (e) it was the intention of Mr. James to make a left turn at the intersection of No. 6 Road and Triangle Road and this intersection which would be to the left of Mr. James was being approached by Mr. James; (f) the vehicle driven by Mr. Hockley was being driven towards Mr. James and the low-beam lights of the Hockley vehicle were activated; and (g) the street light at the intersection of No. 6 Road and Triangle Road was not operative so that illumination of No. 6 Road at that point was diminished.

The court went on to find that the Pedestrian Plaintiff was 90% to blame for this collision and that the Defendant motorist was 10% to blame.  In dividing fault this way Mr. Justice Burnyeat made the following analysis:

I am satisfied that Mr. James was negligent in the operation of the vehicle which struck Mr. O’Connor.  Mr. James ignored the road conditions, visibility on No. 6 Road, the speed limits, his knowledge that there were no sidewalks, and his knowledge that there might be pedestrians.  All of these factors contributed to a need for Mr. James to drive more slowly than even the speed limit which was in effect.  Mr. James owed a duty of care to Mr. O’Connor and did not meet that duty by driving his car at the speed he was going when it hit Mr. O’Connor….

It is clear that the judgment of Mr. O’Connor was somewhat impaired by alcohol.  As well, he was dressed entirely in black without reflective clothing.  His clothing made it difficult if not impossible for drivers to see him.  Contrary to s. 182(2) of the Motor (Vehicle) Act, Mr. O’Connor was not walking facing traffic, and was not walking on the shoulder of No. 6 Road.  Mr. James has shown that the conduct of Mr. O’Connor that evening showed a want of reasonable care for his own safety and that this contributed to causing his injuries.  Mr. James has proven that Mr. O’Connor did not conduct himself in a reasonable manner so that his injuries could have been avoided or, at least, diminished.  In the circumstances, I assess liability at 90% against Mr. O’Connor and 10% against Mr. James.

More on ICBC Claims: Chronic Pain, Surveillance and Credibility

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, Uncategorized.

(Update: December 14, 2011 – the  below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
I’ve written on this topic a few times in the past.  Surveillance in and of itself does not harm a Plaintiff’s ICBC Injury Claim.  It’s when surveillance contradicts a Plaintiff’s testimony that the damage is done.  Reasons for judgment were released today by the BC Supreme Court demonstrating this in action.
In today’s case (Fan v. Chana) the Plaintiff was injured as a passenger in a rear-end collision in Vancouver BC. The crash happened in 2000 and the Plaintiff was 9 years old at the time.
At trial the Plaintiff testified that she suffered various injuries in this collision and that these continued to affect her at the time of trial some 9 years later.   Mr. Justice McEwan noted that the Plaintiff “twisted, turned, stretched and pushed herself against the edge of the (witness) box almost constantly” while testifying.
The Court concluded that the Plaintiff’s injuries were not as severe as presented and instead found that this crash caused “soft tissue injuries of an immediate duration of less than two years” and awarded $25,000 for the Plaintiff’s non-pecuniary damages.
In coming to his conclusions about the extent and severity of the Plaintiff’s injuries the Court noted the following about video surveillance evidence that was gathered on behalf of the defendant:

[50] The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain.  After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed.  In redirect she identified a few occasions on the video where she appeared to “crack” her neck…

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves.  The first is her ordinary, public life.  This is the world of school and teachers and social friends.  In the aftermath of the accident, the plaintiff’s physical education teachers noted no change.  The plaintiff’s marks were those of a diligent, hard working student.  Her social activities are in all respects normal.  The plaintiff’s friends consider her an outgoing, lively companion.  Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court.  There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say.  The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies.  She was observed to sit through a very long film with no trouble.  I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.

In addition to a useful and lengthy discussion on credibility in chronic pain cases Mr. Justice McEwan had the following statement of interest when it comes to doctor’s opinions regarding the severity of Chronic Pain in Subjective Injury Cases:

[72] The balance of the medical opinion divides along lines that depend on the degree of scepticism the doctors bring to the description of symptoms with which they were presented.  These range from very strong endorsements of the plaintiff’s claims (Dr. Kuttner, as reported by Dr. Hahn) to the blunt, contrary opinions offered by Dr. Weeks.

[73] I see very little purpose in parsing the medical reports to sort out who has the greater credibility based on their qualifications (i.e. “paediatric” physiatrists v. “adult” physiatrists).  As courts have observed on any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately reporting to them and then set about a diagnosis that plausibly fits the pattern of the complaint.  In the absence of objective signs of injury, the court’s reliance on the medical profession must, however, proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries.

When prosecuting a Chronic Pain claim the above quote is important to keep in mind.  Just because a physician accepts that a Plaintiff suffers from Chronic Pain as a consequence of a car accident and makes a diagnosis accordingly does not mean a Court has to accept the diagnosis.  The Court can and will make an independent finding of credibility and decide if the pain a Plaintiff complains of is sincere.

Can Past Wage Loss be Recovered in an ICBC Claim When You're Paid "Under the Table"?

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Uncategorized.

When a person is injured through the fault of another in British Columbia and suffers a past wage loss from an “under the table” job can that past wage loss be recovered in a personal injury action? The answer is yes, however, it is much more difficult to do so than in cases where past income is accurately reported to Revenue Canada.
In a 1992 case from the BC Court of Appeal (Iannone v. Hoogenraad) the law was summarized as follows:
This plaintiff, like others in similar circumstances, had the burden of leading evidence of past accident wages losses.  That will be a difficult burden to discharge where there is no corroborating evidence such as income tax returns, but it is not an impossible burden to discharge.  Here the trial judge was satisfied on the evidence that the injuries sustained by the plaintiff prevented him from earning income which he would otherwise have earned.  The burden of proof was therefore discharged.  The loss was proven.  It is not, in my opinion, open to the defendant to avoid compensating for that loss on the ground that unreported income was taken into account in computing it.
Reasons for judgment were released today by the BC Supreme Court demonstrating the difficulty in succeeding in a past wage loss claim in these circumstances.
In today’s case (King v. Horth) the Plaintiff was injured in a 2006 Car Crash in Saanich, BC (greater Victoria).  The Plaintiff claimed damages for various losses including past loss of income.  At trial he asserted that “he would have been capable of earning greater income as a gardener had he not been injured in this accident”. This claim was largely rejected and paragraphs 25-26 of the decision demonstrate Mr. Justice Johnston’s skepticism of this claim for lost income where pre accident income was not reported to Revenue Canada:

[25]      A second concern respecting Mr. King’s credibility relates to his claim for loss of earning capacity arising out of this accident. This claim centers around his assertion that he would have been capable of earning greater income as a gardener had he not been injured in this accident. Prior to this accident the plaintiff did not record, in any fashion, the income he claims that he earned as a gardener, nor did he declare that income on his income tax returns. There is some evidence from a former employer that he had employed Mr. King as a gardener before the accident, however, that employer kept no record of the plaintiff’s work hours or his wages.

[26]      In a document he submitted to ICBC in February 2006, the plaintiff stated his occupation as a surveyor. He did not mention any work as a gardener. Mr. King testified that he felt it was advisable not to refer to his gardening income in his dealings with ICBC, at least in the beginning, because that income had been earned “under the table.”

In addition to making it more difficult to succeed in a past wage loss claim, a further dilemma that can arise in these types of cases are problems with Revenue Canada after trial.  Whether or not a past income award is made at trial, Revenue Canada can come after a Plaintiff for back taxes when these types of cases are advanced.

The reason for this is, to discharge the burden of proof, a Plaintiff usually needs to take the stand and testify under oath as to how much money he/she earned historically but failed to report to Revenue Canada.  Trial testimony is generally a public record and Revenue Canada can use this sworn evidence to come after Plaintiffs.  So, in summary, pay your taxes!

BC Court of Appeal Discusses Causation in Negligence Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 62 Comments on BC Court of Appeal Discusses Causation in Negligence Claims

The law of ‘causation’ was discussed extensively in reasons for judgment released today by the BC Court of Appeal.
Today’s case (Chambers v. Goertz)  involved the appeal of the trial judge’s findings of liability.  At trial the court found a taxi driver partially responsible for a crash for leaving his high-beams on which made it difficult for another motorist to see various Plaintiffs crossing a street.  The other motorist then struck the Plaintiffs causing injuries. (Click here to read my post on the trial judgment).
The taxi driver appealed this finding arguing that “the trial judge erred in law in finding that his conduct was a ‘contributing cause’ of the plaintiffs injuries“.
This appeal was dismissed and the trial judgment was upheld.  In dismissing the Appeal the BC Court of Appeal discussed the law of Causation in personal injury actions, specifically what the law requires for there to be a compensable relationship between the wrong act and injury to the victim.
The Court summarized this area of law as follows:

[18] The Supreme Court’s other use of “material contribution” is seen in Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, [1997] 1 W.W.R. 97, where Major J., writing for the Court, held in the following passage that causation will be established if it is shown that the defendant’s negligence “materially contributed” to the occurrence of the plaintiff’s injury:

The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury:  Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.);McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske(1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

]      In Snell v. Farrell, supra, this Court recently confirmed that the plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. …

[17] It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury.  There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring.  To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”.  As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury.  There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

This proposition has long been established in the jurisprudence.  Lord Reid stated in McGhee v. National Coal Board, supra, at p. 1010:

It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury.  There may have been two separate causes but it is enough if one of the causes arose from fault of the defender.  The pursuer does not have to prove that this cause would of itself have been enough to cause him injury.

[Emphasis in original]

[19] As this passage illustrates, every injury has multiple necessary or “but for” factual causes.  The function of tort law is to identify those for which the defendant should be held responsible.  Thus, in Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th), 4 C.C.L.T. (2d) 229, Sopinka J., writing for the Court, said, at 326,

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

[20] For purposes of determining whether a breach of duty was a “but for” cause of particular harm, there are no degrees of causation – specific conduct was either necessary for the harm to occur or it was not.  However, not every cause necessary for the harm to occur can reasonably be considered a candidate for liability.  For example, in this case, the accident would not have occurred but for the taxi company dispatcher’s sending Mr. Ahmad to respond to Ms. McDonald’s call, but no one would suggest that the dispatcher should be found liable for what happened.  Therefore the law takes cognizance only of those causes that play a significant role in bringing about the outcome.

[21] This concept has been expressed in different ways.  As I have noted, in Athey v. Leonati, the Court said at para. 15 that “causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury”, and that a “material contribution” is one that “falls outside the de minimis range”.  To similar effect the Court said, inSnell v. Farrell, at 327, that proof of causation requires “a substantial connection between the injury and the defendant’s conduct”.  “Substantial connection” was also used to describe this idea in R. v. Goldhart, [1996] 2 S.C.R. 463 at 480, 136 D.L.R. (4th) 502, 107 C.C.C. (3d) 481, where the Court said,

The happening of an event can be traced to a whole range of causes along a spectrum of diminishing connections to the event.  The common law of torts has grappled with the problem of causation.  In order to inject some degree of restraint on the potential reach of causation, the concepts of proximate cause and remoteness were developed.  These concepts place limits on the extent of liability in order to implement the sound policy of the law that there exist a substantial connection between the tortious conduct and the injury for which compensation is claimed. …

[22] Clearly, the “material contribution” test discussed in Resurfice Corp. v. Hanke has nothing to do with the circumstances of this case.  Here, it was not impossible for the plaintiffs to prove causation.  Rather, whether the breaches of duty of the parties played legally significant causal roles in the outcome was in each case a question of fact to be answered by rational inference drawn in the usual way from the evidence.  Causation is essentially “a practical question of fact which can best be answered by ordinary common sense”:  Snell v. Farrell at 328, citing Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at 490 (per Lord Salmon).

[23] It was this conventional “but for” test of causation that the trial judge applied when she held that Mr. Ahmad’s breach of duty was a “contributing cause” of the accident and that he was therefore liable.  Her use of the phrase “contributing cause” signifies that she found as a fact that Mr. Ahmad’s conduct played an important enough role in the combination of events necessary for this occurrence to fix him with liability for the consequences.  This was the correct approach in the circumstances and I would reject the submission that she erred in adopting it.

BC Personal Injury Claims Round Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on BC Personal Injury Claims Round Up

On Friday two more cases were released by the BC Supreme Court dealing with non-pecuniary damages which  I summarize below to add to this Pain and Suffering database.
The first case (Macki v. Gruber) dealt with a bus accident.   The Plaintiff’s vehicle was struck by a Greyhound bus in Duncan, BC.  Liability was contested but the Greyhound bus driver was found 100% at fault for the accident.  Paragraphs 1-60 of the case deal with the issue of fault and are worth reviewing for Mr. Justice Metzger’s discussion of credibility.  In finding the Defendant at fault the Court found that he was “careless” and that he “lied” and his evidence was rejected in all areas that it was in “conflict with the testimony of any other witness“.
The Plaintiff suffered various injuries, the most serious of which neck pain, headaches and upper back pain.  She was diagnosed with a chronic pain syndrome.  Mr. Justice Metzger assessed her non-pecuniary damages at $75,000 and in doing summarized the Plaintiff’s injuries and their effect on her life as follows:

[144] I find the chronic pain has made Ms. Mackie reclusive and morose. She has gone from a “bubbly, fun-loving, outgoing, social, interesting” person, to someone who is  anti-social, with bouts of depression and sadness. From the evidence of the plaintiff and Ms. Garnett, I find that the plaintiff defines herself as a very hardworking woman, but that the chronic pain prevents her exhibiting her previous commitment to work.

[145] This loss of enjoyment of life and identity is given considerable weight.

[146] I am satisfied the plaintiff is resilient and stoic by nature, and I do not doubt the extent of her pain and suffering. She has endured a regime of injections in order to retain some of her employment capacity. Plaintiffs are not to receive a lesser damage award because of their stoicism.

[147] I am satisfied that the plaintiff’s injuries and ongoing limitations are more like those cited in the plaintiff’s authorities and therefore I award her $75,000 in non-pecuniary damages.

__________________________________________________________________________________________________

In the second case released on Friday (Dhillon v. Ashton) the Plaintiff was involved in 2 separate rear-end collisions.  Both claims were heard at the same time and fault was admitted leaving the court to deal with the sole issue of damages.

Madam Justice Ross found that the Plaintiff suffered various soft tissue injuries in each of the 2 accidents.  She awarded non-pecuniary damages in total of $25,000 for both collisions.

In assessing an award of $15,000 for non-pecuniary damages for the first accident the Court summarized the Plaintiff’s injuries as follows:

[60]         I find that Mr. Dhillon suffered soft tissue injury to his neck, right shoulder and low back in the First MVA. He suffered from headaches arising from this injury, but these resolved in a relatively short period of time. The injury to the right shoulder had essentially resolved by mid-May 2005. I find, consistent with Dr. Sandhu’s report that Mr. Dhillon was unable to work as a result of his injuries from the time of the First MVA to mid-May 2005 and then continued to suffer partial disability at work until July 2005. By July 2005 he was able to return to work without limitation. I find that his injuries from the First MVA were essentially resolved by October 2005, except for intermittent pain, consistent with Dr. Sandhu’s report. From October 2005 until the time of the First Workplace Accident, Mr. Dhillon required the use of pain medication for low back pain that was the consequence of both his prior condition and lingering consequences of the First MVA.

[61]         In the result, I find that Mr. Dhillon suffered mild to moderate soft tissue injury from the First MVA with the symptoms most significant in the first three months following the injury; with some ongoing problems for the next five months and intermittent pain thereafter. I find the appropriate amount for non-pecuniary damages for the First MVA to be $15,000.00.

In assessing non-pecuniary damages of $10,000 for the second accident Madam Justice Ross summarized the injuries it caused as follows:

[64]         I find that Mr. Dhillon suffered soft tissue injuries in the Second MVA that resulted in an exacerbation of his injuries to his neck, shoulder, and low back. He had returned to work following the Second Workplace Accident before the Second MVA, but was not able to work after this accident. He required physiotherapy, chiropractic treatment and pain medication for both the continuing injuries from the Workplace Accidents, an apparent recurrence or continuation of the right side back problem first noted in 2000, and the Second MVA. Mr. Dhillon was able to return to work part-time in November 2006 and full-time in January 2007. He requires some accommodation from his employer in terms of his duties. He continues to experience pain and requires medication to control his pain. I find that the Second MVA plays some role, albeit a minimal one, in Mr. Dhillon’s continuing symptoms, the other more significant contributors being the original complaint of low back pain, and the two Workplace Accidents.

[65]         In the circumstances, I find that $10,000.00 is an appropriate award for non-pecuniary loss for the Second MVA

Can you be at Fault for a Crash if you have the Statutory Right of Way?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 50 Comments on Can you be at Fault for a Crash if you have the Statutory Right of Way?

The short answer is yes and reasons for judgment were released today demonstrating this.
In today’s case (Karran v. Anderson) the Plaintiff was seriously injured when she was struck by the Defendant’s vehicle while she was jogging “against the light in a marked crosswalk“.  As a consequence of the impact the Plaintiff “was thrown fifty-seven feet in the air and landed in the south crosswalk…She suffered an occipital hematoma, a fractured left femur, a dislocated right knee…back and neck injuries as well as extensive bruises and abrasions.”
At the time of the accident the Defendant had a green light and he was not speeding.  The Plaintiff, on the other hand, was jaywalking.  Nonetheless Mr. Justice Cohen of the BC Supreme Court found that the Defendant was partially at fault for this crash.  How can this be?  The reason is the determination of fault in BC Personal Injury Claims (with the exception of intentional torts) is governed under the common law of Negligence.  A person can be found negligent even if they did not brake any statutory law during an accident.  Mr. Justice Cohen summarized this principle concisely stating that ” the authorities establish that the common law duty of care exists notwithstanding statutory rights of way and that a breach of a statutory right of way merely provides evidence in support of a finding of a negligent breach of the common law duty of care”
In today’s case the court made the following findings of fact about how the collision occurred:
I find that the plaintiff jogged across Howe Street against the light in the north crosswalk in front of vehicles that were stopped in the two middle southbound lanes; that the southbound vehicles that were stopped when the plaintiff passed in front of them had the green light; that just before the plaintiff was struck by the truck she glanced to her left looking north up Howe street in the east curb lane; that there was heavy rush hour traffic; that the east curb lane on Howe street was open to southbound traffic; that some of the westbound traffic travelling on Smithe Street had failed to clear the intersection thereby preventing other westbound vehicles from entering the intersection; that the defendant’s speed reached 50 km/h; and, that the defendant braked his vehicle just prior to the collision.
The court found that the Defendant was 25% to blame for this collision because he failed “to take any steps to avoid the accident“.  In coming to this conclusion Mr. Justice Cohen highlighted the following facts:
[65] Thus, in the case at bar the first issue to decide is whether the defendant owed a duty of care to the plaintiff with regard to the circumstances that existed in the intersection at the time of the accident.  In my opinion, he did.  I find that the possibility of danger emerging was reasonably apparent such that special precautions should have been taken by the defendant: there was rush hour traffic; despite the fact that the traffic light for southbound traffic on Howe Street had turned to green, the vehicles in the middle two lanes on Howe Street immediately to the west of the defendant’s lane of travel did not proceed through the intersection; westbound traffic on Smithe Street was backed up into the intersection preventing some westbound vehicles from proceeding through the intersection; there were pedestrians in the area of the intersection; and, the defendant’s view of the intersection was blocked by the southbound vehicles that were stopped in the middle two lanes on Howe Street…

[67]         The defendant was proceeding on a green light and thus had the right of way.  However, I find that the defendant did not keep a proper lookout.  He failed to observe that there were vehicles stopped in the middle two lanes on Howe Street.  I find that by failing to observe that the vehicles in the middle two lanes had not proceeded on the green light, and proceeding into the intersection at 50 km/h, he acted in breach of the duty placed upon him to take special precautions in the circumstances.

[68]         Finally, I find that the opportunity existed for the defendant to take action to avoid colliding with the plaintiff…

[100] The defendant accelerated from the intersection at the intersection of Howe and Robson Streets to reach 50 km/h and he maintained this speed to virtually the point of impact with the plaintiff.  I agree with the plaintiff that driving at the speed limit in the east curb lane while the vehicles in the middle two lanes were stopped on a green light was not reasonable nor prudent given the traffic conditions at the intersection.

This case contains a lengthy and thorough discussion of the law regarding the duties of motorists and pedestrians in crosswalk accidents and is worth reviewing in full for anyone researching or involved in a liability case dealing with the same.

Lawyers Hiring Lawyers – A Reasonable Disbursement?

Written by admin on . Posted in Civil Procedure, Uncategorized. 62 Comments on Lawyers Hiring Lawyers – A Reasonable Disbursement?

(Please note the case discussed in the below article was overturned by the BC Court of Appeal.  You can find my summary of the Appeal Judgement here)
Very interesting reasons for judgment were released today by the BC Supreme Court dealing with the recovery of legal fees after a BC Personal Injury Lawsuit.  Before getting into the facts of this case, however, some brief background is necessary.
Generally speaking when a party sues and succeeds in a BC Supreme Court lawsuit he/she is entitled to Court “Costs” which compensate the successful party for having to go through the hassle of a formal lawsuit.
These “costs” have nothing to do with the party’s actual lawyer fees, rather they are set by a Tarriff and the amount of costs the party is entitled to is generally tied to the number of steps they took in the lawsuit.  In addition to ‘costs’ a successful litigant is entitled to claim reasonable disbursements (money spent on advancing the case such as court filing fees, expert witness costs etc.).
Interesting reasons for judgement were released today dealing with whether a litigant’s actual expense for hiring a lawyer could be recovered after a lawsuit.  The general answer to this question is no, however, on the unique facts of this case the Plaintiff was entitled to recover the actual costs of hiring one of his lawyers as a disbursement.
In today’s case  (Baiden v. Manji et al) the Plaintiff sued various defendants for personal injuries.  Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”.   A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course  of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment.  In these circumstances the Plaintiff must turn to WCB for compensation.
Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action.  This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit.
In today’s case this is exactly what happened.  The Plaintiff had to go through with a WCAT hearing before his lawsuit was heard in court.  In doing so the Plaintiff hired a second lawyer to deal with the WCAT.   His legal bill for this second lawyer came to $8,400.
The s. 10 defence did not succeed and the WCAT found that “the injuries to the plaintiff did not arise out of and int he course of his employment”.  The Plaintiff then proceeded to trial.  At the end of trial the Plaintiff asked the Court to allow the $8,400 as a disbursement.  Mr. Justice Chamberlist concluded that this was a reasonable disbursement and allowed the Plaintiff to recover this cost.  Specifically the Court reasoned as follows:

I am of the view that having reviewed the legislation applicable to hearings before WCAT that this is a situation where it is necessary that specialist counsel be hired to deal with the issue.

[22]         The Act discloses, through various sections, that the appeal tribunal is not a court of law like the Supreme Court of British Columbia…

[24]         These very simple observations exemplify the difference between proceedings in the Supreme Court of British Columbia and proceedings under the Workers Compensation Act.

[25]         As a result, I find attendances before the Workers’ Compensation Board and WCAT would be quite different from appearing in court and, as such, represent a need for specialization. …

As I have indicated above, a lawyer may be very competent in Supreme Court where he or she has been taught and practised the importance of legal precedent and is familiar with the rules of admissibility of evidence.  Section 246.1 and s. 250 of the Act obviously disclose some of the differences in appearing before WCAT and appearing before the Supreme Court….

it is not always the case that a disbursement for legal fees paid to another lawyer and reasonably incurred will be disallowed.  Experienced litigators should leave nothing to chance. …

[39]         The fact is that only after some years that Mr. Ward had been counsel for the plaintiff was s. 10 of the WCA brought into issue.  The affidavit filed by the plaintiff discloses that Mr. Ward had never before dealt with the WCAT.

[40]         I have reviewed the various submissions made to WCAT as set out in the affidavit of Karin Reinhold, along with the decision of WCAT, and I find that the retention of Mr. Ishkanian to act for the plaintiff before WCAT was reasonably incurred at the time and the account is reasonable.

[41]         The sum of $8,400.00 is allowed as a disbursement in this action.

ICBC Medical / Rehabilitation No-Fault Benefits and Travel Expenses

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits. 106 Comments on ICBC Medical / Rehabilitation No-Fault Benefits and Travel Expenses

When an ICBC “insured” is injured and receives medical or rehabilitation expenses from the Corporation is the insured entitled to payment for travel to and from the medical appointments?
Reasons for judgment from the Provincial Court of BC (Small Claims Court) were recently brought to my attention dealing with this issue and in this case (Jones v. ICBC) Judge Auxier held that mileage for travel is indeed recoverable from ICBC under the no-fault benefit scheme.
ICBC’s obligation to pay for medical or rehabilitation benefits to their insured’s is set out in s. 88 of the Insurance (Vehicle) Act Regulation which states as follows:

88 (1)  Where an insured is injured in an accident for which benefits are provided under this Part, the corporation shall, subject to subsections (5) and (6), pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis.

(1.1)  Repealed. [B.C. Reg. 383/89, s. 14.]

(2)  Where, in the opinion of the corporation’s medical adviser, provision of any one or more of the following is likely to promote the rehabilitation of an insured who is injured in an accident for which benefits are provided under this Part, the corporation may provide any one or more of the following:

(a) funds to the insured once during the lifetime of the insured for the acquisition by the insured of one motor vehicle equipped as necessary and appropriate to its use or operation by the insured, the choice of make or model of vehicle to be in the sole discretion of the corporation;

(b) funds to the insured once during the lifetime of the insured for alterations to the insured’s residence that are necessary to make the residence accessible to and usable by the insured, the style and cost of the alterations to be in the sole discretion of the corporation and the alterations to be limited to necessary ramps, a necessary lift, necessary bathroom alterations and, where the insured is a homemaker or a person who lives alone, necessary kitchen alterations

(c) reimbursement to the insured for the costs of attendant care, other than care provided by a member of the insured’s family, where the insured has returned to and is residing in the community but is not capable of performing some or all of the tasks necessary to sustain an independent lifestyle, the amount of the reimbursement to be limited to the lesser of

(i)  the monthly cost of a group residence, including a long term care facility, that would be appropriate to the care needs of the insured as determined by the rehabilitation team, and

(ii)  the monthly cost of attendant care required by the insured as a result of injuries from the motor vehicle accident, the level and type of which will be determined by the rehabilitation team using the same standards and criteria applied under the Long Term Care Program of the Continuing Care Division, Ministry of Health, Province of British Columbia;

(d) reimbursement to the insured for costs incurred from time to time by the insured for the purchase and reasonable repair, adjustment or replacement of one or more of the following items:

(i)  a wheelchair;

(ii)  a medically prescribed bed for other than hospital use;

(iii)  bowel and bladder equipment;

(iv)  aids for communication, dressing, eating, grooming and hygiene;

(v)  transfer equipment;

(vi)  a ventilator;

(e) funds to the insured for vocational or other training that

(i)  is consistent with the insured’s pre-injury occupation and his post-injury skills and abilities, and

(ii)  may return the insured as nearly as practicable to his pre-injury status or improve the post-injury earning capacity and level of independence of the insured;

(f) funds for any other costs the corporation in its sole discretion agrees to pay.

(3)  Before incurring an expense or obligation under subsection (2) for which the insured intends to request payment by the corporation, the insured shall obtain written approval from the corporation and the corporation may, before giving its approval, require the insured to submit such information as it considers necessary to assist it in making a decision.

(4)  The corporation is not liable to insure, repair, replace or maintain a motor vehicle acquired by an insured under subsection (2) (a) except in the course of an approved repair resulting from a subsequent claim for insured loss or damage to the vehicle.

(5)  The amount by which the liability of the corporation under this section is limited is the amount set out in section 3 of Schedule 3.

(6)  The corporation is not liable for any expenses paid or payable to or recoverable by the insured under a medical, surgical, dental or hospital plan or law, or paid or payable by another insurer.

(7)  The maximum amount payable by the corporation under this section for medical, surgical, dental, nursing or physical therapy services or for chiropractic treatment, occupational therapy or speech therapy listed in the payment schedules established by the Medical Services Commission under the Medicare Protection Act is the amount listed in the payment schedules for that service, treatment or therapy.

(8)  The corporation is not liable to pay for more than 12 physical therapy treatments for an insured for each accident unless, before any additional treatment is given, the corporation’s medical advisor or the insured’s medical practitioner certifies to the corporation in writing that, in his opinion, the treatment is necessary for the insured.

This section does not specifically address whether ICBC needs to pay for travel expenses.   In Jones v. ICBC (reasons for judgement were delivered on June 13 from the Kamloops Registry) the Plaintiff sued ICBC for a variety of matters including payment of travel expenses to and from medical appointments under Part 7 of the Insurance (Vehicle) Act.

The Honourable Judge Auxier sided with the Plaintiff on this issue and concluded that ICBC does indeed need to pay for travel expenses under their Part 7 obligations.  Specifically, at paragraph 19 of the decision, the Judge held that “Ms. Jones has prepared a list of her visits to the doctor in Kamloops and to the physiotherapist in Kamloops.  The total is seven trips.  I find that she is entitled to mileage for that travel – each round trip being 372 km.“

While the judgment does not specifically state the quantum that was awarded for this damage, a review of the Plaintiff’s Notice of Claim reveals that the mileage was assessed at $0.47 per kilometer of travel.  This is a great precedent directly addressing this issue and I would like to congratulate the self-represented Plaintiff for her success.

More on Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 47 Comments on More on Chronic Soft Tissue Injuries

Today reasons for judgment were released by the BC Supreme Court in 2 separate cases dealing with chronic soft tissue injuries.  I summarize these below in my continued effort to grow this public database addressing awards for pain and suffering in ICBC and other BC Injury Claims.
In the first case (Warren-Skuggedal v. Eddy) the Plaintiff was involved in a very serious collision in Prince George, BC.  The defendant was “driving well in excess of the speed limit…(he) lost control and the truck swerved into the lane in which (the Plaintiff) was driving…the force of the impact tore (the defendants) vehicle in half“.
Fault was not at issue, rather, the court dealt solely with the issue of damages.  The Plaintiff unfortunately had some serious pre-existing health issues and Mr. Justice Sewell had to decide “the true extent of Ms. Warren-Skuggedal’s injuries and disabilities and the extent to which they are attributable to the injuries she suffered in the accident. ”
In valuing the Plaintiff’s non-pecuniary damages at $60,000, Mr. Justice Sewell summarized her injuries, their relationship to the collision and their effect on her life as follows:
[19] I conclude that Ms. Warren-Skuggedal suffered soft tissue injuries in the accident which aggravated her pre-existing depression and anxiety.  I find that she genuinely experiences the symptoms she has described although I do think that she does exaggerate and dramatize them to a certain extent….

[23]         I conclude that some of the symptoms Ms. Warren-Skuggedal reports are attributable to the accident but that the more serious ones are attributable to her pre-existing condition.  Specifically I find that the anxiety, depression and cognitive problems she experiences are not caused by the accident.  As I understand the law in this area the onus is on Ms. Warren-Skuggedal to prove, on a balance of probabilities, that her symptoms would not be present but for the negligence of the defendant, which led to the injuries and trauma suffered in the accident.  I do not think that she has met that onus with respect to the difficulties described in this paragraph.  I think it is more likely that she would have continued to suffer from depression, anxiety and cognitive difficulties even if she had not been injured in the accident.  The difficulties were part of her original position.

[24]         I must also conclude that Ms. Warren-Skuggedal’s inability to find employment since the accident and any impairment of her capacity to earn income in the future are not attributable to the accident.  While I base this conclusion on the whole of the evidence I note that it is consistent with the opinions expressed by Dr. Reddy and Dr. Hirsch, both of whom concluded that the motor vehicle accident did not negatively affect her employment prospects.

[25]         On the other hand, I do conclude that Ms. Warren-Skuggedal does suffer chronic pain as a result of the defendant’s negligence.  I also find that it is likely that she will continue to suffer from that pain for the foreseeable future.  I also conclude that that pain has resulted in some permanent restriction of Ms. Warren-Skuggedal’s ability to enjoy recreational activities and carry out such household tasks as heavier cleaning and gardening.

This case contains a useful analysis of the Courts role in wading through injuries both related to and unrelated to an accident.  The full judgement is worth reviewing for anyone interested in this area of the law.
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The second case released today (Gordon v. Timins) involved a 2005 BC Car Crash.  The Plaintiff’s vehicle was rear-ended by a u-haul truck.  This collision was significant enough to propel the Plaintiff’s vehicle into the vehicle in front of her.
The Plaintiff’s main injury was chronic neck pain.  Mr. Justice Cullen awarded the Plaintiff $45,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  He summarized this lasting injury as follows “In the result Ms. Gordon is left with an injury to her neck that, I find, never fully abates and is aggravated by aspects of her work.  I also find that the plaintiff’s neck pain when aggravated is associated with headaches, some dizziness and impaired sleep patterns with consequential fatigue. ”
In reaching this conclusion the court largely accepted the evidence of Dr. Dhawan, a specialist in physiatry, whose evidence was summarized as follows:

[96]         Dr. Dhawan was a specialist in physiatry or physical medicine.  He testified that the neck has a complicated anatomy with soft and hard tissue structures.  It has ligaments in front and the muscles on top of that.  If the muscles or ligaments are torn, it can lead to instability of the structure.  Dr. Dhawan’s diagnosis of the plaintiff when he saw her on July 18, 2008 was that she had torn muscles and ligaments.  He said that ligaments take longer to heal than muscles because they have less blood supply.  Scar tissue can form and it is not as strong as the original ligament and can stretch or tear more easily and can remain inflamed after forming.  He testified that in the case of a rear-end accident, the usual source of pain is the upper facet joints.  In his report, he reported no boney discogenic or neurological injury, characterizing it as a soft tissue injury.  He noted that the plaintiff “was referred to Kevin Tam … who was able to help her tremendously.”  He noted that she has difficulty in extending her head upwards to prune trees.  He recommended injection therapy – local steroid and anaesthetic injections, 2 – 3 times over a 2 – 3 month period.  He testified that those injections with a stretching and posture control program could resolve the syndrome of soft tissue injury.

[97]         He opined there would be no permanent sequelae like development of arthritis or any need for surgery and no disability from her work as a landscaper/arborist.

[98]         Dr. Dhawan concluded, however, that given the chronicity of her symptoms “some symptoms of neck and shoulder girdle pain may remain on a longer term basis and she will have to learn to live with pain and a quick resolution of symptoms is not likely.”…

[100]     Dr. Dhawan noted that although the degenerative changes are unrelated to the motor vehicle accident, “…individuals who have such changes in the neck do not respond well through treatment and have more prolonged symptoms after soft tissue injuries and symptoms of neck pain may persist for several years and may become chronic.”

[101]     Dr. Dhawan noted in Appendix 3 to his July 18, 2008 report that the plaintiff’s neck extension was only 25% of normal without pain.  He concluded that that was an objective symptom and consistent with his diagnosis.

$75,000 Non-Pecuniary Damages for Moderate/Severe Post Traumatic Stess Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.
In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.”
ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.
Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

This case is also worth reviewing for the courts awards of Loss of Future Earning Capacity.
In this case the Plaintiff’s past wage loss was modest up to the time of trial totalling neat $6,000. Notwithstanding this minimal past wage loss the Court awarded significant damages of $225,000 for loss of future earning capacity because of the ongoing impact of the Plaintiff’s PTSD on his ability to work in his own occupation.  Paragraphs 28-42 of this case are worth reviewing for anyone interested in the law of damages in BC relating to future wage loss.