Adding to this site’s archived caselaw addressing damages for headaches, reasons for judgment were released this week by the BC Supreme Court, Prince George Registry, dealing with such an injury.
In this week’s case (Rutledge v. Jimmie) the Plaintiff was involved in a 2011 collision in Quesnel. The Defendant was found fully at fault. The Plaintiff suffered a neck injury which caused secondary headaches which continued at the time of trial and were expected to linger into the future. In assessing non-pecuniary damages at $55,000 Mr. Justice Tindale provided the following reasons: 100] The plaintiff, based on the preponderance of evidence, has clearly established that the motor vehicle accident caused him to have chronic post- traumatic headaches related to a neck injury. [101] This injury has caused significant changes to his lifestyle, particularly to his passion for powerlifting. He has also had to modify his lifestyle with regard to recreational activities, activities at home and some of his activities at work. I am mindful that the plaintiff did not miss any employment as a result of this accident; however, I also accept that he is a stoic individual and persevered in his employment… [103] Dr. Robinson opined that despite the success of the Botox treatment, the plaintiff’s headaches may continue to linger for many years to come although at a lower frequency and severity than the plaintiff is experiencing now. [104] The majority of the cases relied on by the plaintiff have fact patterns which are far more serious than the case at bar. Likewise, the cases relied on by the third party do not appropriately address the significant lifestyle changes and pain suffered by the plaintiff. [105] In my view the appropriate award for non-pecuniary damages is $55,000.
Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing fault for a single vehicle collision involving a passenger who grabbed the steering wheel.
In last week’s case (Sikora v. Brown) both the motorist and her passenger were driving home from a nightclub. Both had been drinking but neither was “seriously intoxicated“. As they drove through an intersection the steering wheel was shaking and the driver invited the passenger to feel this. He held on to the steering wheel and shortly thereafter the collision occurred. In finding both the driver and passenger equally to blame Mr. Justice Verhoeven provided the following reasons: [37] In these difficult circumstances, where neither version of events is reliable and where there is essentially no independent corroborative evidence one way or another, I find as follows. Ms. Sikora had been drinking some alcohol at the nightclub but was not seriously intoxicated. Mr. Brown had been drinking as well, somewhat more than she had, but was a large man and was also not seriously intoxicated. They left the nightclub together intending to go to Ms. Sikora’s home. Along the way they discussed going to a restaurant. Whether they actually agreed to go to the restaurant is immaterial. Ms. Sikora was driving at about 60 km/h as they drove through the intersection. She was aware that the intersection caused her vehicle to shake, and that the steering of her vehicle was notably “loose” and prone to shaking. Either before entering the intersection or in its midst, in the context of telling Mr. Brown about the new car she had ordered that very day, she commented about the condition of the intersection, complained that it should be repaired, and complained about the poor condition of her vehicle’s steering in common with Fords generally. She did not slow down before entering the intersection. She invited Mr. Brown to observe the shaking of the steering wheel, and to feel the steering wheel of the car for himself. He held it for a few seconds then let go. The combined effects of Mr. Brown’s holding of wheel, the condition of the road and vehicle, and Ms. Sikora’s manner of driving the vehicle caused her to lose control of the vehicle some seconds after Mr. Brown let go of the wheel. The precise mechanics of this are impossible to sort out. She did not brake at any time. The vehicle likely swerved left before veering to the right, and then left the roadway to the right side, before eventually coming to rest in the ditch upon impact. [38] I find that both parties were negligent and that they both contributed to causing the accident in equal measure. Ms. Sikora was negligent in not slowing down before entering the intersection or when proceeding through it, when she was very familiar with the defects in the road and the particularly significant consequences to her vehicle of the defects. In somewhat precarious circumstances, she invited Mr. Brown to feel the steering wheel, when she ought to have known that his doing so could have unpredictable consequences, and could affect her ability to properly control the vehicle. She did not slow down when he held the steering wheel for several seconds. She lost control of the vehicle after he let go of the wheel. [39] Mr. Brown was also negligent, in holding the steering wheel for a few seconds, when he knew or ought to have known in all the circumstances, including the defective condition of the road and Ms. Sikora’s comments about the problems with her vehicle’s steering, that his actions could affect Ms. Sikora’s ability to control the vehicle. I find that his actions materially contributed to her loss of control of the vehicle, and that the accident would not have occurred otherwise. I do not accept his evidence that he merely touched the wheel with his open hand to feel it shaking. He negligently grasped the wheel and held it in such a manner that it interfered with her ability to control the vehicle… [45] I find that Ms. Sikora and Mr. Brown are equally at fault for causing the accident. As a result it is not strictly necessary to apply s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, which provides that where the fault of two or more persons causes damage or loss to one or more of them, liability must be apportioned equally if having regard to all the circumstances of the case it is not possible to establish different degrees of fault.
It pays to take reasonable efforts to get better. Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.
In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision. The Defendant admitted fault. The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future. The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow. The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments. In reaching this conclusion Mr. Justice Kelleher provided the following reasons: [55] The facts of this case represent a textbook example of a failure to mitigate. There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. Mr. Maltese has chosen to ignore them… [59] I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer. [60] Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. [61] On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate… [77] In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program. The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer. [78] But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages. I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future. After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning. He has not done so. I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.
While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances. Reasons for judgment were released this week by the BC Supreme Court addressing this.
In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops. Many of the workers were unrestrained in the box of the pick up truck. The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.
The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck. Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride. In reaching this conclusion the Court provided the following reasons: [282] I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people…. [284] I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions: 1) Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals; 2) Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness; 3) Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay; 4) The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks; 5) On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold; 6) The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated…. 296] Annie controlled the workers’ transportation and she called the shots. [297] The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication. [298] By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck. [299] These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in Iannone, Bissky, Massey and Fraser. [300] Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.
Update June 22, 2015 – The BC Court of Appeal ordered a new trial finding the trial court “erred in law in imposing a new or novel duty of care on police in advance of a pursuit without having conducted a full Anns/Cooper inquiry”
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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability for a fatal collision which occurred during a police pursuit.
In today’s case (Bergen v. Guliker) the Plaintiff vehicle was struck head on by the Defendant vehicle which was fleeig from police at the time of collision. The court noted that “Prior to the Collision, it was known that Mr. Guliker was suicidal, had stated an intention to jump into traffic to kill himself, and was a flight risk. When the RCMP first approached Mr. Guliker, he was parked at a chicken farm on Bustin Road. On sighting the RCMP, Mr. Guliker fled north on Bustin Road at a high rate of speed.”.
The Court found that the RCMP were in part responsible for the tragic collision. In reaching this conclusion Mr. Justice Savage provided the following reasons: [249] Once Mr. Guliker accelerated down Bustin Road, it was obvious to the RCMP officers that Mr. Guliker’s sighting of their vehicles precipitated his flight. A proper risk assessment at this point would have alerted the officers to the significant public safety risk of chasing a suicidal individual who is determined to evade apprehension down unfamiliar rural roads at high rates of speed. [250] Nevertheless, the officers commenced and continued a pursuit of Mr. Guliker up to the point of the Collision. [251] To summarize, in my opinion Constables Huff and Brand failed to conduct a proper risk assessment at two critical times: (1) before deciding to proceed down Bustin Road without a plan in place that recognised the likelihood of Mr. Guliker fleeing in his vehicle, and (2) after proceeding down Bustin Road toward Mr. Guliker’s location and seeing him accelerate away. A proper first risk assessment would have precipitated the development of a plan to address the likelihood of Mr. Guliker fleeing. A proper second risk assessment would have called off the chase and considered other options. [252] I find that Constables Huff and Brand did not act within the standard of a reasonable police officer, acting reasonably and within the statutory powers imposed upon them in the circumstances of this case. In the result, the RCMP officers breached their duty of care owed to the plaintiffs.
Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury with a pre-existing complicating factor.
In the recent case (MacIntosh v. Davison) the Plaintiff was involved in a rear end collision in 2009. He had injuries from previous collisions which were recovered. He also underwent back surgery many years prior. Although he had no symptoms related to this his back was at risk of suffering exacerbation of back injuries. The Court assessed non-pecuniary damages at $90,000 but then reduced these by 20% to account for the plaintiff’s original position. In reaching this conclusion Mr. Justice Davies provided the following reasons: On balance, having considered the totality of the evidence I consider reliable, I have concluded that after consideration of the measurable risk of future back problems inherent in Mr. MacIntosh’s “original” position but considering also the increased risk of further exacerbation of his present post-accident condition because of the defendants’ negligence in the 2009 collision, a reduction of 20% of the award of damages that would otherwise appropriately compensate Mr. MacIntosh for the injuries he has endured since October 2009 is necessary to ensure that he is only compensated for the difference between his “original” and his “injured” condition… 1) Mr. MacIntosh’s testimony and that of the medical and lay witnesses establishes that although injuries arising from the collision other than his low back injuries were largely resolved within one year, the low back injuries suffered in the collision have continued with only limited and sporadic abatement over time. 2) I accept the opinions of Drs. Kates, Quirke and O’Connor that Mr. MacIntosh’s condition has now “plateaued” and will not likely deteriorate further, except for occasional flare-up of more intense and debilitating pain. 3) However, the “plateau” which Mr. MacIntosh has reached renders him a far different person than the one he was prior to the collision. 4) Mr. MacIntosh’s life in the four years since the collision has been dominated by the effects of the collision as he has followed all of the medical advice he has received to attempt to regain his health. 5) While he has continued to golf regularly, his enjoyment of the game is much lessened. He also now golfs at significant rehabilitative cost and discomfort requiring much ongoing physical therapy. 6) In that regard, while I note Dr. MacPherson’s opinion that the golfing exacerbates Mr. MacIntosh’s condition, I also note that his treating physicians have encouraged him to attempt to golf and undertake therapy as necessary to alleviate more acute symptomology related to it. 7) I accept that to be a reasonable course of both advice and treatment because if Mr. MacIntosh had to restrict his golfing more than he has done, the result would be a larger award for non-pecuniary losses related to his ability to enjoy that which he previously enjoyed before the collision. 8) The medical “plateau” at which Mr. MacIntosh now finds himself and which will likely endure for the balance of his active life also includes an inability to exercise as rigorously as he once did or hike with the enjoyment he once had. He is also far more irritable due to sleep deprivation caused by his injuries. That has an impact on his social life as he has become more reclusive than before. 9) All of those aspects of his present life significantly negatively impact his overall enjoyment of life not only physically but also socially and emotionally. Coping with and trying to ameliorate the lasting effects of those injuries now are the focus of his daily life in place of the healthy and well-rounded physical, emotional and social life he previously enjoyed. [91] In all of the circumstances I find that an award of $90,000 would appropriately compensate Mr. MacIntosh for his past, present, and future pain and suffering and loss of enjoyment of life. By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that arises from the defendants’ negligence, I award Mr. MacIntosh $72,000 to compensate him for his non-pecuniary losses.
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing a jury strike application in a paraplegia injury claim.
In the recent case (Laktin v. Vancouver (City)) the Defendants “were responding to a call that the Plaintiff might be suicidal” when one of the Defendant police officers “shot the plaintiff, rendering him paraplegic“.
The Plaintiff sued for damages and elected trial by Jury. The Defendants brought an application to strike the jury notice arguing the trial was too complex for a jury to hear. Mr. Justice Pearlman disagreed finding that despite the severe nature of the injury the matter was appropriate for jury trial. In reaching this conclusion the Court provided the following reasons: [35] This is not a trial that involves multiple accidents or actions, or that raises complex issues of causation of the plaintiff’s physical injuries. The jury may have to determine the extent to which the psychological injuries claimed by the plaintiff result from a pre-existing condition rather than the incident of January 21, 2006. That will involve the jury making findings of fact that are well within the capabilities of a modern jury. [36] The defendants have identified numerous issues of fact and law relating to issues of liability, the statutory and common law defences to the plaintiff’s claim of battery available to the defendants, the apportionment of fault, and damages. It is the responsibility of the trial judge to instruct the jury concerning the legal principles that will apply to the facts as found by the jury. The court will instruct the jury on the application and interpretation of the relevant provisions of the Police Act and the Criminal Code. [37] The duties of care owed by the defendants to the plaintiff are a matter of law for determination by the trial judge rather than the jury. It will be the responsibility of the trial judge to determine whether the City of Vancouver owed a duty of care to the plaintiff, and whether, as a matter of law, there is any basis for the plaintiff’s claim against the City, other than its liability under s. 20 of the Police Act for the torts of municipal police officers. [38] Whether, as a matter of law, the application of the doctrine of ex turpi causa would be justified in the circumstances of this case is also a matter for the trial judge. [39] The defence correctly submits that the provisions of ss. 34 and 37 of the Criminal Code in force at the time of the incident that gave rise to this action add a level of complexity to this trial. However, juries in criminal cases have been frequently called upon to apply those provisions, and with the assistance of instructions from the trial judge, have done so. I see no reason why a civil jury, properly instructed, cannot perform a similar task. [40] In my view, finding the facts regarding what occurred in the sequence of events that culminated in Constable Coulthard shooting the plaintiff, and determining whether the force used by the police was justified in all of the circumstances are tasks well suited to a jury composed of eight members of the community.
In another example of social media posts being used in personal injury litigation reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, where a Facebook post impacted the trial of the 52 year old plaintiff.
In today’s case (Raikou v. Spencer) the Plaintiff was involved in a 2011 T-bone collision. The Defendant admitted fault. The Plaintiff suffered various soft tissue injuries and had complaints lingering at the time of trial. The court found some of these were related to the collision and some of these were due to pre-existing factors. The Court also noted that the Plaintiff “had a tendency to overstate or exaggerate her condition somewhat“. This finding was due in part to a Facebook update where the Plaintiff discussed “partying“. In illustrating the use of this quote Mr. Justice Skolrood provided the following reasons: 3] Before turning to that issue, I should note that while I found Ms. Raikou generally to be a credible witness, in my view she had a tendency to overstate or exaggerate her condition somewhat. This is particularly so in her description of her pain as being constant and unremitting. [54] By way of example, Ms. Raikou travelled to Greece in July and August of 2011. When she returned, she posted the following entry on her Facebook page on August 20, 2011: From the airport to Eleni’s and Nick’s wedding. Missed the ceremony but made it to the reception. From the airport home to change and off to the reception. Made it through and had an awesome time. 48 hours without sleep, jet lagged and still partying. [55] I agree with counsel for Ms. Raikou that caution must be applied when considering the relevance and import of Facebook entries in that they are but a mere “snapshot in time” and do not necessarily shed light on a person’s overall condition or ongoing complaints: see Guthrie v. Narayn, 2012 BCSC 734 at para. 30. [56] Nonetheless, this particular snapshot is inconsistent with Ms. Raikou’s testimony that her pain condition is continuous and unrelenting and that it has effectively precluded her from enjoying any of her pre-accident activities.
It is well established that failure of an ‘independent medical examiner’ to physically examine a patient is not, in and of itself, a reason for an expert report to be inadmissible in the BC Supreme Court. However, when a litigant relies on such a report the weight the court attaches to it is often negatively impacted. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Johal v. Meyede) the Plaintiff was injured in a 2010 rear end collision. Fault was admitted by the Defendant. The Plaintiff suffered injuries which were ongoing at the time of trial and expected to effect her well into the future. In the course of defending the claim ICBC retained a neurologist who did not examine the Plaintiff and provided a more conservative opinion with respect to the plaintiff’s limitations and care needs. In placing less weight on this opinion, in part for failing to examine the plaintiff, Mr. Justice Funt provided the following reasons: [47] The defendants also called Dr. F. Kemble as an expert witness. He had been retained to provide a responding medical-legal report. He was qualified, without objection, to provide expert evidence with respect to neurology. Dr. Kemble concluded his October 22, 2013 report saying: I do not feel that there is any indication for any thoracic outlet surgery. Ultimately, the probability is that she will be able to work full time although she will probably have minor difficulty in terms of using her arm and moving her neck. I am optimistic, that with the measures outlined by Dr. Travlos and Dr. Caillier, that the pain will significantly reduce. [48] For two reasons, I have given less weight to Dr. Kemble’s report and testimony than the other medical experts. First, he did not meet or examine the plaintiff. Second, in cross-examination, Dr. Kemble conceded that the basis for his report could be incorrect to the extent it was based on the assumption that the plaintiff’s symptoms would become intermittent.
Earlier this year the BC Supreme Court dismissed a lawsuit following a fight between two adults at a Pee Wee baseball game. Prior to trial the Defendant made several fairly modest settlement offers, one of which was a formal offer giving the Court the discretion to award double costs. In finding it was unreasonable for the Plaintiff to reject the offer and proceed to trial Madam Justice Watchuk (Charland v. Cloverdale Minor Baseball Association) provided the following reasons ordering the Defendant to pay double costs: [17] Mr. Wheeler submits that the offers were offers which ought reasonably to have been accepted. There is now general agreement on the law that, “in determining whether the offer to settle ought reasonably have been accepted the court does not consider the final result… The reasonableness of a decision not to accept an offer must be assessed … [by] the circumstances existing when the offer was open to acceptance:” [Ward at para. 36]. [18] The first offer of $3000, although not a formal offer under the Rules, was made on March 13, 2012. It canvassed the minor injuries set out in Mr. Charland’s records, and noted that there was not the required supporting letter to substantiate the amount of an offer which had been made by Mr. Charland. [19] On June 8, 2012, a formal offer to settle in the amount of $5000 was served on counsel for Mr. Charland. It was open until five minutes after the commencement of the trial. [20] Discoveries of Mr. Charland were held in late July 2012. On August 2, 2012, counsel for Mr. Wheeler wrote to plaintiff’s counsel expressing reasons why Mr. Charland’s case was problematic. Those reasons, the credibility of Mr. Charland and the nature and extent of his injuries, were later the subject of findings made at the trial which supported the position of Mr. Wheeler. [21] At that time, previous offers were retracted and a “nuisance offer” of $250 was formally made. [22] Mr. Wheeler submits that the fact that the final offer was reduced significantly following discoveries should have no effect on the determination of whether double costs are appropriate in this case. I agree. [23] It was incumbent on Mr. Charland to “make a careful assessment of the strength or lack thereof of [his] case at the commencement and throughout the course of the litigation” [Hartshorne at para. 25]. Mr. Charland had knowledge, particularly after his Discovery, of the evidentiary problems in his case. He chose to proceed to trial despite knowledge of those problems. In light of that knowledge at the time the $5000 offer was made, and in light of the heightened knowledge at the time the nominal offer of $250 was made, his decision not to accept the offers was not reasonable. [24] As in Riley, Mr. Charland ought reasonably to have anticipated that his claim would be dismissed at trial. [25] With regard to the other factors listed in Rule 9-1(6), the relationship between the terms of settlement offered and the final judgment of the court may be considered by the court. The second and final offers were more favourable to Mr. Charland than the decision of the court since his claim was dismissed with costs. [26] The court may also consider the relative financial circumstances of the parties. Little is known regarding this factor. It appears from the evidence that both parties have similar financial circumstances. Both have legal costs arising from the litigation. [27] There are no other factors raised by Mr. Wheeler and, in the absence of submissions from Mr. Charland, no other factors that the court considers appropriate to take into account. [28] On consideration of the factors set out in Rule 9-1(6), I conclude that Mr. Wheeler is entitled to double costs from the date of the first formal offer, June 8, 2012.