Where fault for a collision is disputed it is very unusual for one of the parties to fail to testify. Absent a good explanation the Court is free to draw an ‘adverse inference’ meaning an assumption that the party would not help their cause if they did indeed testify. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, discussing this principle.
In this week’s case (Solberg v. Carriere) the Plaintiff pedestrian was struck by the Defenant’s vehicle in a 2012 collision in Campbell River, BC. The Plaintiff, was “acting in an animated and boisterous fashion” near the Defendant’s vehicle. The Defendant put his vehicle in motion knowing the Plaintiff was in the vicinity who then “slipped and fell” and was run over by the vehicle’s trailer. The Defendant argued the Plaintiff was fully at fault for the incident. The Defendant, who was present during the trial, decided not to testify. The Court drew an adverse inference from the Defendant’s failure and concluded that the Defendant “breached his duty of care by moving his vehicle forward without looking for himself to see that it was safe to do so, knowing that (the Plaintiff) was in the immediate area and acting foolishly”.
In drawing an adverse inference from the Defendant’s failure to testify Mr. Justice Johnston provided the following reasons: [43] Weighing the evidence in light of those criteria set out in McIlvenna, I conclude that in this case I will draw an inference that, if he had been called, Mr. Carriere’s evidence would not have tended to establish that he looked toward Ms. Solberg before he put his vehicle in motion. I conclude that Mr. Carriere relied on his passengers to tell him if it were safe to move, whether it was good to go or clear. This is consistent with his discovery evidence that no one was looking at Ms. Solberg as he was driving away, and consistent wit the evidence of his passengers who did testify.
Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, addressing liability when a dog leaves its owners property and causes harm to others.
In today’s case (Gallant v. Slootweg) “the defendants’ dog, “Rocky”, ran from their property, apparently unimpeded by the electronic fence that was intended to keep it within the property, towards the plaintiff and knocked him from his bicycle“. The Plaintiff suffered orthopeaddic injuries and sued for damages.
The dog did not have a history of violence but did have “a propensity to chase cyclists”. The Defendant’s argued that this was not sufficient to establish liability as the dog did not have a history “of a vicious or dangerous nature” and that installing an electronic fence was a sufficient step to prevent a finding of negligence. Mr. Justice Joyce disagreed and found the defendants liable in both negligence and under the principles of scienter. In reaching this conclusion the Court provided the following reasons: [24] It is not necessary, however, for the plaintiff to show that the dog has actually caused the particular harm in the past; what is required is to show that the defendant knew or ought to have known that the dog had a propensity or manifested a trait to do that kind of harm. .. [32] I am satisfied that Rocky had a propensity to chase cyclists while barking and get as close to them as he could within the electronic restrain to which he was ordinarily subject, and to follow them as they traversed in front of the defendants’ yard. I am satisfied that Rocky’s actions constituted a propensity to cause harm to cyclists by knocking them from their bicycles if he was not restrained within the yard. I am further satisfied that the defendants knew, or ought to have known, that if not restrained, Rocky would run right up to a cyclist, barking at the cyclist and creating a very real risk that he would impede the travel of the bicycle. The defendants had watched Rocky run the length of the front yard getting as close to cyclists as he could within the boundaries of the electronic fence, which was the only method that they employed to restrain Rocky from going right up to the cyclists. The harm the Rocky caused on this occasion was the very kind of harm that, in my view, Rocky had demonstrated a propensity to inflict. [33] I conclude, therefore, that the defendants are liable on the basis of scienter. [34] I am also satisfied that the defendants are liable on the basis of negligence. In my opinion, they knew that the only thing that was keeping Rocky from running up to cyclists using the road in front of their property, and likely knocking them from their bicycles, was the electronic fence. It is my view, that a reasonable person would not place reliance solely on such a device to secure their dog and prevent it from causing harm to users of the road, when they were aware of the risk of harm if Rocky got free from the confines of the electronic fence. Unlike a physical fence or a large pen, it is not possible to readily observe that the electronic fence is in good repair. [35] Further, the operating manual that the defendants received when they purchased the fence warned them that the fence was a deterrent, not a barrier and advised that there was no guarantee that a pet could be trained to avoid crossing the boundary. [36] In order to meet a reasonable standard of care to ensure Rocky was kept within the property would not have required the defendants to incur the expense of fencing the whole of the property. They could have built a large “dog run” that would have provided Rocky with ample exercise room when not on leash, in the company of someone able to restrain him. Alternatively, they could have used a chain for Rocky that would not physically permit him to go beyond the property and onto the roadway. [37] Further, I find that having adopted the electronic fence as the only means of preventing their dog from escaping onto the road and charging passers-by, they were negligent in not ensuring that it was working properly by testing it on a frequent basis. While it is not known precisely when the receiver failed to operate, they had not tested it for months. They only checked the transmitter on a daily basis. Even when the defendants replaced the batteries and tested the receiver after the incident they found that did not operate consistently. If they had tested it regularly, it is likely that they would have discovered that it was not safe to rely on the electronic fence system to retrain Rocky.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff in an injury lawsuit to disclose credit card statements for a span of several years.
In today’s case (J v. K) the Plaintiff was involved in two motor vehicle collisions. She allegedly suffered a head injury and the medical evidence noted that the Plaintiff “is probably suffering with residual frontal lobe dysfunction with respect to impulsive behavior, impulsive buying“.
The Defendant requested various financial records to explore the reported impulsive buying behavior. Master Taylor agreed that this was a reasonable request and ordered that Visa records from a year prior to the collision onwards be disclosed. In reaching this decision the Court provided the following records: [24] I am satisfied by the circumstances and the facts of this case that the request for the plaintiff’s credit card statements which will likely show her spending patterns, and that the information gleaned from the statements is relevant and material to the plaintiff’s claims. I am not satisfied that the plaintiff’s banking records are material to her claim or that her privacy with regard to those items should be breached, aside from one exception as set out in paragraph 26 below. [25] Accordingly, I order that the plaintiff disclose her Visa credit card statements and any other credit cards she may have used or statements related to any other credit cards, from one year pre-accident to the present. In this instance, it is one year prior to her first accident which occurred on September 13, 2010. The statements are to be unredacted except for those purchases made by the plaintiff’s brother which may be redacted. [26] In the event that the claimant intends to show any impulsive spending by way of debit card transactions, then those monthly statements should be provided to the defendants, but in this case only the monthly statements in which the alleged impulsive spending is to have occurred, and in an unredacted format.
Quickscribe, BC’s premier service for tracking legislative changes in the Province, has now launched their updated online version which provides many new features including legislative annotations from ‘experts’ in various legal fields.
I am happy to accept Quickscribe’s invitation to act as their annotator for motor vehicle related legal developments. While Quickscribe is a subscription service with many worthwhile features worth paying for for those involved in the legal industry, those that access my content here will not be losing out. I will, in addition to my services at Quicskscribe, continue to provide timely BC injury law related updates here free of charge.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for facial scars following a tragic motor vehicle collision.
In today’s case (Boparai v. Boparai Estate) the Plaintiff was involved in a serious collision when he was 8. He was a passenger in a vehicle which crashed and killed his mother and twin brother. The Plaintiff suffered relatively minor soft tissue injuries and serious facial scarring. In addressing non-pecuniary damages for these physical injuries Mr. Justice Schultes provided the following reasons: [71] To summarize the physical injuries and their consequences, at a vulnerable age Mr. Boparai received several serious facial scars from this accident. He then had to endure numerous uncomfortable procedures to reduce their visibility, without complete success. [72] The scars have had a significant influence on his life to this point. Although I agree that Dr. Rai has been able to improve them markedly from their original state (and there was an additional surgery planned to try to improve them further), the reality is that some degree of visible scarring will be permanent. [73] As significant as the scars themselves were, the self-consciousness and embarrassment that they caused in Mr. Boparai as he was growing up were equally damaging, making his schooling and social development much more difficult. I accept that he has tried to avoid social interaction because of these feelings, which were directly caused by the physical injuries. [74] That said, and without minimizing the continuing visibility of some of Mr. Boparai’s scars or the way that they make him feel about himself, I should say that to an objective observer they are not shocking or disturbing, and a distinction should be drawn between his situation and that of very severely disfigured accident victims, whose every moment in public is a source of compassion or discomfort for observers. [75] The soft-tissue injuries that he suffered, mainly to his right leg, were much less serious than the scarring. While there is no reason to doubt his assertion that the leg injury kept him out of sports for several years and out of physical education class until Grade 10, I think it would be unsafe to conclude, in the absence of any evidence of ongoing treatment, that it was a source of major discomfort after the last visit to his doctor in relation to it in July 2003, about four years on from the accident… 84] Taking into account the relevant aspects of the injuries that I have described, and receiving guidance from the cases without following them slavishly, I award Mr. Boparai $100,000 in non-pecuniary damages for his soft-tissue injuries and facial scarring.
Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, with critical comments of an orthopaedic surgeon frequently hired by ICBC.
In today’s case (Hay v. Benzer) the Plaintiff was involved in a pedestrian/vehicle collision in 2008. ICBC had the Plaintiff assessed by a orthopaedic surgeon who largely limited the connection between the collision and the Plaintiff’s symptoms. The Court placed “very little weight” on this evidence and in doing so Mr. Justice Cole provided the following comments: [13] At the request of ICBC she saw Dr. O’Farrell on July 28, 2009. He is an orthopaedic surgeon. He does a significant amount of work for ICBC and appeared to me to be more of an advocate than an independent professional. He found that the plaintiff would not have any long-term effects from the motor vehicle accident. He had documents only from a physiotherapist dated June 16, 2009. Dr. O’Farrell did admit that if pain was still present two and a half years after the accident that it would most likely be a long-term or permanent pain. Dr. O’Farrell did not produce any notes of his assessment claiming they were most likely in another file. I give Dr. O’Farrell’s evidence very little weight.
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages and fault following a motor vehicle collision.
In today’s case (Hill v. Murray) the Plaintiff was involved in “a very bad car accident” in 2009. The Defendant was found fully at fault. The Plaintiff’s injuries included chronic soft tissue injury and post concussive symptoms. In assessing non-pecuniary damages at $120,000 Mr. Justice Macaulay provided the following reasons: 196] On balance, I prefer the evidence of the plaintiff’s doctors where it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill received the following injuries as a result of the accident: 1. Soft tissue injuries to the left neck and shoulder, including AC joint, with cervicogenic headaches and some numbness and tingling down her left arm, now plateaued but not symptom free, particularly if she attempts to do too much; 2. Chronic intermittent pain; 3. Migraines (aural), under control; 4. Migraines unresolved and triggered differently than pre-accident migraines associated with pre-menstrual period; 5. PTSD (resolved by the time of trial); 6. Nightmares, transitory and resolved; 7. MTBI or post-concussion syndrome resulting in ongoing fatigue, memory, concentration, and balance problems; 8. Possible overlap of vestibular injury (trauma to utricle) causing or contributing to balance issues; and 9. Adjustment disorder, largely in remission. I do not accept the sufficiency of the evidence respecting temporo-mandibular joint dysfunction. [197] It is now more than four years post-accident. Ms. Hill is unlikely to see further improvement. Instead, ongoing therapies will aim at pain management, assisting with balance issues and any further adaptions required respecting the effects of the MTBI or post-concussion syndrome. As she ages, the balance issues will likely elevate her risk of falling. [198] Ms. Hill’s injuries have significantly impacted her life and will continue to do so. She has lost the ability to participate in many of the sport and recreational activities that she enjoyed before the accident. Her physical interactions with the children are more limited than before. In social interactions, Ms. Hill is now easily overwhelmed or cannot recall the conversation thread. Her personality now appears different and less attractive to her family, friends and associates. [199] While Ms. Hill has been able to return to work at Butchart Gardens, she no longer takes the same degree of pleasure in her work and requires employer accommodations in order to do her job. It is unlikely that she will be able to fulfill the specific career aspirations that she had in mind before the accident and accordingly, she must adjust to that loss as well… [212] I reiterate that no two cases are truly alike when assessing non-pecuniary damages. I assess non-pecuniary damages at $120,000.
A common pattern following the trauma of a motor vehicle collision is the onset of symptoms in an otherwise asymptomatic degenerative spine. Reasons for judgement were released this week by the BC Supreme Court, Courtenay Registry, dealing with such a fact pattern.
In today’s case (McCarthy v. Davies) the Plaintiff was involved in a 2010 collision caused by the Defendant’s negligence. She sustained chronic pain in her neck and back which ultimately were diagnosed as originating from degenerative disc disease. The collision caused the onset of symptoms. The Court rejected the Defendant’s argument that the symptoms would have come on in any event and in assessing non-pecuniary damages at $100,000 Madam Justice Gerow provided the following reasons: [65] In my view, the evidence establishes the probable cause of Ms. McCarthy’s ongoing neck, upper back and lower back pain is that the injuries she sustained in the accident exacerbated her pre-existing asymptomatic degenerative disc disease. While there was a risk that the degenerative disc disease in her neck and back would become symptomatic at some point in the future, the evidence is that she did not have neck or back pain prior to the accident. As stated by Dr. Leete, there are approximately 10 to 15% of patients who suffer from long term intrusive symptoms as a result of the trauma to their spines from a motor vehicle accident. [66] Having reviewed the evidence I have concluded this is one of those cases, and the defendant is liable for Ms. McCarthy’s ongoing symptoms even though they may be more severe than expected due to her pre-existing condition. As stated by the experts, many individuals have degeneration in their spines without any symptoms. Accordingly I conclude Ms. McCarthy’s ongoing symptoms fall within the thin skull rule enunciated in Athey. [67] I find that but for the accident Ms. McCarthy would not be suffering from the chronic pain in her neck, shoulder and back with the associated mental distress… [103] Having considered the extent of the injuries, the fact that the symptoms have been ongoing four years with little improvement, the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $100,000.
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, holding that ICBC cannot deny Part 7 benefits based on speculation that a pre-existing condition is causing the injury in question absent evidence justifying this position obtained within 60 days.
In today’s case (Kozhikhov v. ICBC) the Plaintiff submitted over $10,000 in medical treatment expenses which ICBC refused to pay. ICBC relied on s. 96(f) of the Regulations which excludes treatments for conditions caused by “sickness and disease” unrelated to the collision. ICBC did not have evidence justifying this position, at least not in the 60 days following the submitted claim. In holding that ICBC is obliged to pay the Part 7 benefits in these circumstances Mr. Justice Smith provided the following reasons: [19] The benefits claimed in this case are subject to s. 101(b). The 60 day period for payment allows ICBC the opportunity to review and investigate the claim. Obviously, it does not give sufficient time for the extensive investigation the corporation may undertake when defending its other insured–the allegedly at fault motorist–in the tort claim, but that is consistent with summary nature of the claim and the relaxed standard of proof required of the plaintiff. [20] ICBC relies on s. 96(f) of the Regulation, which reads: The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person (f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part. [am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.] [21] Section 96(f) must be read in conjunction with s. 101. If the plaintiff’s injury is caused by the sickness or disease referred to in s. 101, benefits are not payable. But in the absence of evidence that s. 96(f) applies, ICBC must pay benefits within 60 days after it receives proof of the claim. [22] In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline. In cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.
