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(Update December 1, 2014 – the BC Court of Appeal upheld the below decision in reason released today)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding a school liable after a child was severely injured following a fall from the school roof.
In today’s case (Paquette v. School District No. 36) the 12 year old plaintiff was playing on school grounds after hours. There was a tree in close proximity to the school. He climbed the tree onto the roof of the school with a friend. The vice principal heard them and yelled for them to get down. Trying to go unidentified they attempted to climb down via a different route. The Plaintiff “hung down from the edge of the roof, presumably placed his feet on the top of the wire fence, and safely jumped to the ground. Unfortunately Owen lost his grip on the roof. He slipped and then fell all the way onto a cement surface at the bottom of the stairwell, a total distance of about 20 or 21 feet.”
The Plaintiff sued for damages. The School was found 75% at fault for having the tree in such close proximity to the school that kids could climb it. In reaching this conclusion Madam Justice Sharma provided the following reasons:
[35] First, most of the time the defendant knew people had been on the school roof, the defendant did not know how they got there. The lack of evidence about people having previously used the cherry tree to access the roof is, therefore, unsurprising. On one occasion the defendant did know that someone climbed a tree close to the school to access the roof. As Mr. Hurd rightfully conceded, a tree close to the school will tempt kids to climb it and get onto the roof. I conclude it was foreseeable that trees close to the school might be used to access the roof. It is simple common sense that if a child can get onto a roof, it is reasonably foreseeable that the child might fall off that roof and get badly injured.
[36] Second, there was no evidence of “regular monitoring” of potential access points to the school roof. If there was at any time either a schedule of routine inspection or an assessment of trees proximate to the school that could potentially provide access to the roof, I would have expected that to be put into evidence as it would have clearly been material to this case.
[37] Instead, the evidence demonstrates that if the defendant took any action in response to knowing youth had been on the roof, it was only reactive and ad hoc. This was despite the fact that there were numerous possible access points to the roof, as depicted in Mr. Delavalle’s photographs.
[38] Mr. Hurd’s evidence establishes that this school had a problem with youth getting onto its roof. The numerous incidents he recalls confirm that this problem was known to the principal, teachers, maintenance workers, students and their families and others. Despite this, there is no evidence that the defendant required anyone to turn their mind to whether any trees were growing too close to the school roof and providing the access that allowed for this problem to persist.
[39] In making these findings, I am mindful that the defendant is not expected to be perfect and that it would be impossible to completely prevent anyone getting on the school roof other than in an authorized fashion. However, taking into account all the circumstances of this case, it was unreasonable that the defendant allowed the cherry tree to grow so close to the school’s roof.
[40] The defendant also argues it should not be held liable because most, if not all, other instances of people being on the roof occurred on the weekend and probably involved teenagers. The problem with that submission is the issue in this case is not about when the roof was accessed. Rather, the issue is whether the defendant’s actions in relation to possible roof access points were reasonable. The school is a permanent structure and its grounds are open to the public. When the roof was accessed is immaterial to the determination of whether the defendant acted reasonably in allowing the cherry tree to grow so close to the roof.
[41] The same reasoning can be applied to the defendant’s argument that it was likely only older, non-students who had been on the roof previously. I note the evidence about the age of the people on the roof on weekends was obviously speculative, except for the two instances Mr. Hurd witnessed. It would be imprudent to place significant weight on this point when the evidence is not conclusive. But even if it was proven that all prior incidents involved teenagers, I do not find that that fact would support a conclusion that this accident was not foreseeable. If there are numerous instances of teenagers being on the roof, the elementary school students would know about it. This inference is confirmed by Mr. Hurd’s evidence that he received reports from his students about people on the roof during weekends. It is common sense that if students know that older youth have been on the roof, they may be tempted to do the same. More than one witness agreed that tree climbing is a normal part of childhood.
[42] Mr. Hurd testified he was surprised that was how the boys got on the roof because he thought the tree was flimsy. As noted above, I have found the cherry tree had a study branch close to the roof. More importantly, in my view a reasonable person understands that a child might try climbing any tree close to the roof, flimsy or not. Owen was a 12 year old boy. Children act impulsively, with little forethought about the consequences of their actions and with limited insight. Put more simply, reasonable people foresee that children can and often do stupid things that are dangerous even when they know they shouldn’t.
[43] I am not suggesting that the inherent nature of childhood means an occupier is liable for anything that a child might do. As always, each case must be assessed in context, reviewing all the circumstances.
[44] Given the circumstances at this particular school, a reasonable person would foresee that the cherry tree (or any other tree in similar proximity to the school roof) might be used by kids to climb onto the roof. As such, the defendant is liable for not taking reasonable actions to prevent children accessing the school roof via the cherry tree.
Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, discussing the discretion to reopen a case prior to judgement to call new evidence.
In the recent case (Kostecki v. Li) the Plaintiff was injured in a collision and sued for damages. In the course of the trial she was cross examined about statements attributed to her in a consultation letter from a treating neurologist which “can be seen as inconsistent with Ms. Grace’s evidence of the seriousness of the accident and of the persistence and seriousness of her ongoing symptoms.”
The Plaintiff did not adopt the statements contained in the letter. After the close of the case the trial judge noted the limitation of such cross examination absent proof the statement was made. The Defendant brought an application to re-open the case and call the doctor to prove the statement. In allowing this request Mr. Justice Schultes provided the following reasons:
[18] No judgment has been pronounced and only the plaintiff has made submissions. The cases demonstrate that the discretion is exercised much more readily prior to judgment.
[19] The failure to call this witness originally was due to a simple mistake by counsel in failing to grasp the evidentiary value of Dr. Beckman’s report standing alone, if the plaintiff failed to adopt its relevant portions. The purpose of reopening would only be to remedy that error and to put the defendant in the position that he would have been in if it had not been made. It confers no additional benefit beyond this corrective purpose. It represents proof of statements with which the plaintiff has been confronted, and the only potential additional evidence will be any explanation by Dr. Beckman of his process of recording patient histories and any aspects of that process that might allow him to vouch for the accuracy of the statements he has recorded in his letter.
[20] In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen: Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.
[21] In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.
[22] Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.
Update March 10, 2015 – The below decision was overturned by the BC Court of Appeal which found that the trial judge made “palpable and overriding error” in the assessment of the evidence. A new trial was ordered.
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Credibility plays a vital role when advancing a claim with subjective injuries. Negative credibility findings can undermine such a claim as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pacheco v. Antunovich) the Plaintiff was involved in “a very minor” rear end collision in 2012. The Court found that the Defendant was “travelling at a speed of no more than two kilometers per hour at the time of the collision“. The Plaintiff alleged injury and sought over $100,000 in damages at trial. The Court rejected the entirety of the claim and ordered the Plaintiff to pay the Defendant’s costs. In reaching this decision the Court was critical of the Plaintiff’s credibility and provided the following reasons:
[10] The credibility of the plaintiff is very important in a case like this where the foundation for most of the plaintiff’s complaints is subjective. Therefore, it is prudent for me to deal with the issue of credibility.
[11] The plaintiff was cross-examined on her medical records for the period before the collision. It is clear from those records that the plaintiff attended her doctor on a very regular basis in the months and years preceding the collision. Although the plaintiff testified that she was active in sports before the collision, her medical records seem to indicate that she visited her doctor in relation to ongoing pain and repercussions she claimed she was still suffering from her previous injuries. In fact, one of these visits in which she complained of this type of pain occurred about a month before the collision.
[12] Another result of the cross-examination of the plaintiff on her medical records was the fact that she previously complained of weight gain and hair loss in September 2010. This is exactly one of the claims she alleges in this action as a result of the collision.
[13] Further, throughout the trial and at five or ten minute intervals, the plaintiff would stand up from her seat and continuously stretch so that I could “see” the pain she experiences when she sits in one position for a period of time…
[19] I did not find the plaintiff to be a very credible witness at trial. Her testimony was not reasonable within the circumstances of the very minor “fender bender” in this case. I find that she had a strong penchant for gross exaggeration and, as such, I do not accept her evidence…
25] I find that the plaintiff has failed to prove on a balance of probabilities that she suffered any injury as a result of the collision. The plaintiff’s action is therefore dismissed with costs.
Brain injuries, like chronic pain, often are described as ‘invisible injuries’ as proof of their reality often escapes diagnostic imaging. In a revealing breakthrough findings were published this week in the Journal of Neurosurgeory showing that the brain indeed is physically altered following a concussive injury and these subtle changes are detectable on dMRI imaging. The article dealt with hockey players however are equally applicable regardless of the origin of the physical trauma such as motor vehicle collisions.
Below are the conclusions of these recent breakthrough study:
Concussion during ice hockey games results in microstructural alterations that are detectable using dMRI. The alterations that the authors found suggest decreased extracellular space and decreased diffusivities in white matter tissue. This finding might be explained by swelling and/or by increased cellularity of glia cells. Even though these findings in and of themselves cannot determine whether the observed microstructural alterations are related to long-term pathology or persistent symptoms, they are important nonetheless because they establish a clearer picture of how the brain responds to concussion.
Update September 23, 2015 – The below decision was overturned in reasons released today by the BC Court of Appeal.
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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, dealing with the responsibility of ICBC to pay damages following a collision caused by a passenger grabbing a steering wheel.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.” He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash. The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally. The matter proceeded to trial and damages of over $800,000 were assessed. The Defendant motorist was insured with ICBC at the time. ICBC refused to pay arguing they had no responsibility to cover the damages. In a “disturbing” finding Mr. Justice Saunders agreed and provided the following reasons letting ICBC off the hook:
[48] First – though it makes no difference to the outcome – I reject the plaintiff’s
contention that the estate of Mr. Hearne can obtain indemnity by virtue of
Mr. Hearne having been an insured under his own owner’s certificate. Section 63(a)
of the Revised Regulations does use the indefinite article, defining an insured as a
person named in an owner’s certificate. But it does not refer to any owner’s
certificate. Reading Part 6 of the Revised Regulation as a whole, the scheme of
insurance created thereunder clearly envisages the owner’s certificate referenced in
s. 63 to be the certificate on the at-fault vehicle, not any certificate on which an atfault
driver may be named. I agree with the defendant’s submission that the plaintiff’s
interpretation of s. 63(a) would lead to an absurdity: having one’s own owner’s
certificate would entitle one to the status of an insured in respect of any motor
vehicle, without that vehicle’s owner’s consent, and without having paid any extra
premium. I further agree that indemnity to an insured operating a motor vehicle not
described in an owner’s certificate issued to the insured is extended by operation of
s.65 of the Revised Regulation. To provide indemnity to such an insured through the
plaintiff’s interpretation would render s. 65 redundant.
[49] Second, I would not find – and it is not contended by the plaintiff – that
Mr. Hearne’s grabbing of the steering wheel constituted operation of the vehicle, with
the meaning of s. 64 of the Revised Regulation. I cannot find on the evidence that
Mr. Hearne probably intended to take control or intended to aim the vehicle in any
particular direction. Ms. Felix’s impression is that in the first two incidents of him
grabbing the wheel, Mr. Hearne was simply intending to scare her. Although the final
incident was different in that the movement of the vehicle was affected, there is not
sufficient evidence for me to infer that Mr. Hearne meant to alter its course. His
action interfered with the operation of the vehicle by Ms. Felix, but was not operation
in itself.
[58] While the Revised Regulation does, in effect, create a policy of liability
insurance, and while, as I have found, it is appropriate to apply to the Revised
Regulation the interpretive rule that coverage is to be construed broadly, the rules of
interpretation of statutory instruments must be paramount. Statutes are to be
construed liberally, but the construction and interpretation must be consistent with
the evident legislative intent. It appears to have been the intention of the governor in
council not to extend indemnity to vehicle passengers except those who may be
found to have been operating a vehicle with consent, or, in the limited case of injury
to a person who was not an occupant, to have been operating a part of the vehicle
within the meaning of s. 66.
[59] For that reason I am led to the conclusion that Mr. Hearne, as a passenger in
the plaintiff’s vehicle, was not engaged in use of the vehicle within the meaning of
s. 64. The defendant is under no obligation to indemnify the Hearne estate, and the
plaintiff’s claim must therefore fail.
[60] The consequence of this interpretation as regards designated drivers is one
which some may find disturbing. If that consequence was unintended, that is a
matter for consideration by the government.
(Update March 25, 2015 – an appeal from the below liability finding was dismissed)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing fault for a crash involving a wide left hand turning vehicle.
In this week’s case (Le v. Point) the Plaintiff was operating a scooter and passed a vehicle which was stopped ahead of him waiting to turn left. The Plaintiff passed on the right hand side of the vehicle. At the same time the Defendant, coming from the opposite direction, was attempting a left hand turn through the intersection. The Defendant almost cleared the intersection when the Plaintiff clipped the rear of the vehicle.
The Court found the Defendant was established in the intersection and was the dominant vehicle with the Plaintiff failing to keep a proper lookout. Despite this the Defenant was found partially at fault because she was turning wide into the curb lane.
In finding the Defendant 30% at fault Madam Justice Russell provided the following reasons:
[51] I find that Mr. Le did not keep a proper lookout as he entered the intersection. If he had, he would have seen Ms. Dickson’s vehicle conducting a left turn. By the time he entered the intersection, Ms. Dickson’s vehicle was in the northeast corner of the intersection, which was directly in front of his line of vision.
[52] However, Ms. Dickson has admitted that she violated s. 165 of the Motor Vehicle Act by turning wide into the northbound curb lane of traffic on Arbutus rather than the lane of traffic closest to the centre line. While this in itself is not sufficient to establish that she breached her duty of care, if she had turned into the nearest northbound lane as required, it is likely she would have been clear of the intersection by the time that Mr. Le entered it and the collision may never have occurred. On this basis, I find Ms. Dickson was contributorily negligent in causing the collision despite the fact that she was the dominant driver.
[53] In closing arguments the plaintiff referred to several cases in which a left turning driver was held 100% liable for collisions: Andrews v. Mainster, 2012 BCSC 823, Clarke v. Stephan, 1993 CanLii 1554 (B.C.S.C.), Djukiv v. Hahn, 2006 BCSC 154, Tait v. Dumansky, 2012 BCSC 332, Pasemko v. Van Varner, 1994 CanLii 1043 (B.C.S.C.). These cases are not of assistance to the Court in deciding the issues at hand. In all of these cases it was found that the left turning driver failed to observe traffic which constituted an immediate hazard and breached an obligation to yield the right-of-way. Since I have found that Mr. Le was not an immediate hazard and Ms. Dickson was the dominant driver, these cases are distinguishable on their facts.
[54] In the circumstances of this case, I apportion the fault for the 2010 Collision as 70% to Mr. Le and 30% to Ms. Dickson.
It what is a fairly unusual symptom following motor vehicle related injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with associated heart palpitations. In this week’s case (Morena v. Dhillon) the Plaintiff was involved in a 2008 collision. The Defendant admitted fault. The Plaintiff suffered a variety of injuries which remained symptomatic at the time of trial and were expected to linger into the future, the most unusual of which were heart palpitations. In assessing non-pecuniary damages at $130,000 Madam Justice Arnold-Bailey provided the following reasons:
[117] The evidence establishes that she was injured in the accident and as a result developed of the following injuries and conditions as listed by to Dr. Koo:
1. Soft tissue injuries to the neck, shoulders, arms, lower back and legs with chronic residual sequelae of:
a) Chronic whiplash injury with mechanical neck pain, myofascial origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus muscles.
b) Mechanical low back pain.
2. Chronic sleep disruption.
3. Posttraumatic stress disorder.
4. Severe depression.
5. Heart palpitations.
[130] In the present case, prior to the accident, the plaintiff was a vital, energetic 43-year-old wife and mother of two. The extent of her injuries and the ensuing conditions is clearly set out above. She is likely to continue to suffer from pain, depression, PTSD, sleep disruption and potentially heart palpitations in to the future. Her depression is severe and seems to be entrenched. Her pain is severe at times and she requires constant pain medication. Her emotional suffering is great due to her great sadness and regret that she is not able to make the contributions to her family life that she did prior to the accident. Her relationships with family and friends have been negatively affected although her family remains intact. The best evidence is that she is fully disabled from work except for the one hour a day as a lunch supervisor she currently performs during the school year. She remains partially disabled from housework and other physical activities. Her enjoyment of all aspects of her life is significantly reduced. She is prevented by the injuries and their aftermath from living what otherwise was likely to have been a very happy, productive and fulfilling life. She has lost much.
[131] Considering the range of awards in the authorities provided on behalf of the plaintiff, I find the decisions of Marois and Morlan to be of the most assistance. I award non-pecuniary damages in this case in the amount of $130,000.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a novel claim; whether ‘ski buddies’ owe each other a legal duty of care.
This week’s case (Kennedy v. Coe) involved a heli-skiing expedition. The Plaintiff’s husband and the Defendant never met before. The skiers were to ski in a buddy system for certain runs and the two were paired up for this purpose.
During a run which did not require buddy supervision the Plaintiff’s husband had a fatal accident. The Defendant did not notice at the time but when he realized the Plaintiff’s husband was absent he alerted the group and a search was undertaken. The Plaintiff sued for damages arguing that had the Defendant paid better attention the search could have been undertaken sooner and possibly saved her husband’s life.
Madam Justice Fischer dismissed the claim finding the Defendant acted reasonably in the circumstances and even if he did not there was no legal duty of care in these circumstances. In reaching this conclusions the Court provided the following reasons:
[99] There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence I have reviewed. For the reasons I have outlined, I conclude that none of the three factors in Childs support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish aprima facie duty of care. A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The “more” may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances, which would be subject to an analysis of the contrary policy considerations at stage two of the Annstest…
[121] The plaintiff’s claim is dismissed. It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe.
In what may be the low water mark in upheld assessed damages for a skull fracture and brain injury, the BC Court of Appeal upheld a jury’s damage award of $35,000.
In today’s case (Paskall v. Scheithauer) the Plaintiff was involved in a pedestrian/vehicle collision. She sustained serious injuries including a left temporal skull fracture, a basal skull fracture and a traumatic brain injury. The only expert evidence the jury heard from were independent medical examiners hired by the Plaintiff. The Defendant conducted a defense medical examination but did not produce a report. The Plaintiff did not call any of her treating physicians. The Defendant argued that while the injuries were severe they recovered well, a conclusion the jury may have accepted.
In upholding the “low” assessed non-pecuniary damages the BC Court of Appeal provided the following reasons:
[42] The injuries sustained by the appellant were significant, but there is no schedule for an award of non-pecuniary damages based on the nature of the injuries sustained. The function of damages in tort is to put the claimant into the position she would have been in had the tort not occurred. Compensation for the trauma and pain of her injuries is required, but further compensation requires proof of ongoing adverse effects. It is apparent that the jury, in its award of non-pecuniary damages, did not accept that the appellant has serious, ongoing adverse effects.
[43] Although the award for non-pecuniary damages appears to be low, in my view, it was open to the jury to make it. It reflects the jury’s consideration of the fact the appellant was injured seriously and its assessment that her injuries did not have a long-term serious effect. I see no basis on which this Court could interfere with it.
In concurring reasons Madam Justice Saunders commented as follows:
[97] My second comment is in respect to the award of non-pecuniary damages. Damages are a question of fact, as to which this court owes deference to the fact finder. The classic statement of our role as an appellate court found in Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.), has equal force today:
… Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell, [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld., [1942] A.C. 601). The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld., at 616).
[Emphasis added.]
[98] While the award is very much at the low end of those amounts awarded for traumatic brain injury in many other cases, we cannot say, on the evidence the jury could have accepted, that the award is a “wholly erroneous estimate of her loss of amenities and enjoyment of life”.
[99] Accordingly, I, too, would dispose of the appeal and cross appeal in the manner described by Mr. Justice Chiasson.