For those of you visiting this site after reading today’s article in the Vancouver Sun discussing Class Proceedings Act litigation with respect to Court hearing fees , welcome.
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Although not common, motorists can be found partly or even wholly at fault after being involved in a rear-end collision. Such a result was demonstrated in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Stanikzai v. Bola) the Plaintiff rear-ended the Defendant’s vehicle. The Court was presented with competing versions of how the collision occurred but ultimately accepted the evidence of an independent witness who confirmed the Defendant “quickly” moved into the Plaintiff’s lane as we was attempting a U-turn in front the the Plaintiff’s vehicle. In finding the Defendant 75% at fault for the resulting impact Mr. Justice Smith provided the following reasons:
] The only independent witness called was Mr. Tiwana, a truck driver who was behind the plaintiff in the left lane. Like the plaintiff, he described the defendant’s van moving into the right lane, then quickly attempting a u-turn in front of the plaintiff’s vehicle, leaving the plaintiff no time to react. However, one significant difference between the plaintiff’s evidence and that of Mr. Tiwana is that Mr. Tiwana said he saw the left turn signal on the defendant’s vehicle before what he described as the attempted u-turn.
[7] There is no doubt that when one vehicle hits another from behind, the onus is on the driver of the rear vehicle to show that the collision was not caused by his or her fault: Barrie v Marshall, 2010 BCSC 981. A driver following other vehicles is expected to keep his vehicle under sufficient control to be able to deal with sudden stopping or slowing of the vehicle in front: Pryndik v. Manju, 2001 BCSC 502.
[8] But while liability for a rear end collision usually rests entirely with the following driver, that is not an invariable result. For example, in Saffari v Lopez, 2009 BCSC 699, both drivers were found to be equally at fault for a rear end collision. In that case, the front driver stopped or slowed suddenly, ostensibly to retrieve a fallen cigarette, but the court found that the rear driver was travelling either too fast or too close behind to stop when confronted with the hazard.
[9] The plaintiff and the defendant in this case give conflicting evidence that cannot be reconciled. In attempting to determine what happened, on the balance of probabilities, I prefer the evidence of the only independent witness, Mr. Tiwana. He describes the defendant moving suddenly into the plaintiff’s lane in circumstances where the plaintiff did not have time to stop. That is not consistent with the defendant’s evidence of the lapse of time between her lane change and the collision and I do not accept her evidence on that point. I do accept her evidence that she had no reason to be making a u-turn and was not attempting one, but I find that her turn to the left on impact likely created the mistaken impression of a u-turn.
[10] Based on Mr. Tiwana’s description of the accident, I find that the defendant, in changing lanes, failed to notice or properly assess the position of other vehicles and failed to ensure that she had sufficient room to change lanes safely. Section 151(a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 reads:
151 A driver who is driving a vehicle on a laned roadway
(a) must not drive from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle,
[11] I therefore find that the accident was caused or contributed to by the negligence of the defendant. However, on the basis of Mr. Tiwana’s evidence, the plaintiff must also bear some responsibility because he failed to see the defendant’s turn signal. Although the defendant’s move was a sudden one, seeing her turn signal would likely have given the plaintiff an earlier opportunity to either apply his brakes or to at least use his horn to warn the defendant of his presence.
[12] Because it was the defendant who created the dangerous situation, I find that she must bear the greater share of blame and apportion liability 75 per cent to the defendant and 25 per cent to the plaintiff.
In what can be described as a fairly unique injury, reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic cough caused by a motor vehicle collision.
In today’s case (Reilander v. Campbell) the Plaintiff was involved in a 2006 rear-end collision. The Plaintiff developed a chronic cough following the crash. The Plaintiff alleged this was caused by a C5/6 disc herniation which interfered with her oesophagus resulting in the chronic cough.
The Plaintiff went on to have surgery to address her disc injury which somewhat improved her chronic cough. Mr. Justice Leask found that the cough was indeed related to the collision and assessed non-pecuniary damages at $125,000. In doing so the Court provided the following reasons:
[26] Dr. Matishak’s opinion was that Ms. Reilander:
… suffered the onset of neck pain, persistent and unremitting cough, and left arm pain and weakness following the motor vehicle accident of July 29th, 2006. Radiological investigation revealed a central C5/6 disc herniation. Therefore, I would opine that the C5/6 disc herniation is a direct result of the motor vehicle accident of July 29th, 2006…
[32] Taking into account the facts that I have found based on the evidence given by the Reilander family and the expert opinions of both Dr. Matishak and Dr. Gittens, I am satisfied that the plaintiff has demonstrated on a balance of probabilities that the motor vehicle accident of July 29, 2006 caused a disc herniation at C5/6 on her cervical spine and that disc herniation was the principal cause of her persistent and debilitating cough…
[36] Considering the effect on the plaintiff’s personal life, child-rearing responsibilities, marital relationship and her ability to participate in the exercise of her religion, I am satisfied that the plaintiff’s submission is appropriate. I award the plaintiff $125,000 for non-pecuniary damages.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a fractured wrist which resulted in post traumatic arthritis and permanent dysfunction.
In last week’s case the Plaintiff was struck by the Defendant’s vehicle as she was crossing the street. Fault for the crash was admitted. The Plaintiff suffered a comminuted fracture of her distal radius which required surgery.
The injury resulted in post traumatic arthritis developing which interfered with its function and was expected to cause limitations on a permanent basis. In assessing non-pecuniary damages at $85,000 the Court highlighted the following medical evidence addressing prognsois and provided the following reasons:
[9] In his May 15 report, Dr. Somani states as follows:
…
Prognosis.
It is my opinion that the Plaintiff has plateaued with respect to function. She continues to have discomfort of the right wrist. Clinical examination has demonstrated reduced range of motion and reduced grip strength. Recent x-rays have confirmed probable premature osteoarthritis which may be progressive.
The Plaintiff has impairment in the abilities to self-care, housecleaning, laundry, complex meal preparation and transportation as outlined by the occupational therapy assessment.
The Plaintiff will continue to require support services which may include cleaning, meal preparation, shopping, laundry and transportation.
The Plaintiff may require specialized bracing for her right wrist and possibly an orthopedic opinion should her osteoarthritis progress in the future.
The Plaintiff will continue to require analgesia for pain management and regular assessments of her home with respect of safety features including handrails etc….
[22] On March 8, 2010, the Plaintiff was an active, independent woman of 76 clearly taking great pleasure in her life. After her injury, she was not able to look after herself and took a long while to even get back to walking. Now she is left with a right hand of limited use because of pain, arthritis and de-conditioning, a fear of walking on her own and significant loss of function such that she can no longer cook as she once did, or do the heavier housework. She continues to have pain and suffering and her enjoyment of life is markedly diminished. For that loss, I award her general damages of $85,000.
Last week the Supreme Court of Canada released reasons for judgement discussing the standard of care for motorists driving near children.
In last week’s case (Anapolis County District School Board v. Marshall) the Plaintiff, who was 4 years old at the time, suffered “catastrophic” injuries when struck by a school bus. His case was dismissed at trial with a Jury finding the motorist was not negligent. The Nova Scotia Court of Appeal ordered a new trial finding the Judge’s charge to the Jury was confusing. The School Board appealed further and in a split decision the Supreme Court of Canada upheld the trial result finding the Judge’s charge to the Jury was appropriate.
The following passage was included in the Judge’s charge to the Jury addressing the standard of care when driving near children:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge. Justice Cromwell provided the following reasons:
The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms. Looking at the charge as a whole, this, in my respectful view, did not occur. The misdirection may have given rise to an injustice. I would therefore dismiss the appeal.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain caused by low back nerve root irritation.
In this week’s case (Stanikzai v. Bola) the Plaintiff was involved in a 2007 motor vehicle collision. The Plaintiff sustained various soft tissue injuries and in addition the crash caused persistent low back pain involving the Plaintiff’s S1 and sciatic nerves. The Plaintiff’s symptoms were expected to continue with the prognosis being “quite guarded“.
Mr. Justice Smith assessed non-pecuniary damages at $100,000 although reduced this amount by 15% to account for a “measurable risk” that the Plaintiff would have experienced similar symptoms even without the collision due to pre-existing factors. In arriving at this assessment Mr. Justice Smith provided the following reasons:
[24] Dr. Yu also believes the accident caused a low back injury that resulted in left sided sciatic pain with “obvious clinical signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff had pre-existing degenerative disc disease, but that is a very common condition and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on cross-examination that the plaintiff’s disc degeneration is severe for a person his age. Dr. Yu and Dr. Caillier also agreed that the disc degeneration put the plaintiff at increased risk for back pain and sciatica and that disc herniation and resulting pain can occur without any significant trauma…
[26] Dr. Caillier said that given the chronic nature of the plaintiff’s symptoms, he is likely to have ongoing low back and radiating leg pain as well as sensory disturbance and weakness in the left leg. Although she says some improvement may be possible with medication and a physical reconditioning program, his prognosis “remains quite guarded.” She said his ability to work will be effected by his low back symptoms and resulting limitations in “sitting, standing, lifting, carrying, bending, twisting, crouching, as well as any other impact activities.” She concludes:
It is my opinion that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August 25, 2007 have had a significant negative impact upon his future employability as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am also in agreement that there will be some longterm disability associated with his symptoms, whether he chooses to go forward with surgical or nonsurgical options.
[27] Dr. Yu said the plaintiff’s symptoms will likely “persist for the foreseeable future.” Although surgery could be performed to remove the bulging disc, Dr. Yu said even that is unlikely to provide complete relief.
[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion…
[31] The Defendants agree that the plaintiff suffered some injury, but say his spine was already in a severely degenerated condition and the accident only aggravated or accelerated that pre-existing condition. They also say there was a significant risk that condition would have detrimentally affected the plaintiff in the future even without the accident. Those are issues to be considered on assessment of damages. Based on the only medical evidence that is before me, I find that the plaintiff has a low back injury, with associated nerve root involvement, that was caused or contributed to by the accident.
[32] I also find that the plaintiff has experienced and will continue to experience low back pain. Based on his evidence and that of other witnesses, I find that he remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities, and that the pain significantly interferes with his quality of life…
[42] Apart from what I have found to be a real possibility of future back problems in any event, I find Majer and Crane to be the most comparable. Both cases involved ongoing and likely permanent back pain that, while not completely disabling, severely limited the plaintiff’s work and recreational activities. Both involved pre-existing conditions that were asymptomatic at the time of the accident, although the plaintiff in Crane had, like this plaintiff, a previous history of back pain. The court awarded non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.
[43] If I had not found the plaintiff to have been at significant risk for back problems, I would have assessed non-pecuniary damages of $100,000. In recognition of that risk, I apply 15 per cent reduction and assess non-pecuniary damages at $85,000.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision. Fault for the incident was admitted by the Defendant. The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial. While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome. In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:
[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.
[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.
[492] The question that remains is, what is the cause?..
[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.
[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.
[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…
12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.
[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.
[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.
In a good demonstration of the Court’s discretion following a trial where a Plaintiff does not beat a pre-trial defence formal settlement offer, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a Plaintiff’s post offer costs and disbursements away but not requiring the Plaintiff to pay the Defendant’s costs and disbursements.
In this week’s case (Tompkins v. Bruce) the Plaintiff turned down a pre-trial formal settlement offer of $950,000. Following trial the Plaintiff was awarded net damages of $851,437. ICBC applied for post offer costs. Mr. Justice Curtis found such a result would not be appropriate and instead took away the Plaintiff’s post offer costs and disbursements. In doing so the Court provided the following reasons:
[28] When the offer in this case was received on October 6, 2011, the plaintiff and his counsel were in possession of the information necessary to make a realistic assessment of the potential recovery. Naturally, there is no mathematical certainty in those matters and differing courts may give differing amounts. The plaintiff and his counsel would clearly have contemplated a range of possible recoveryies. The plaintiff, of course, hopes for the high end of the range and the paying party the low ? settlements are often made somewhere in between.
[29] The offer in this case was reasonable on the facts of the case as they were known to the parties. It could reasonably have been accepted as being within the range of possible recovery, although likely it would not have been thought by either party at the high end of the range. The amount of the Offer was reasonable as was its timing: the information necessary to assess the claim was in the possession of the parties, yet there was plenty of time to give careful consideration to the matter before the November trial date. On the other hand, Mr. Tompkins was seriously injured. He and his counsel’s view of the matter was that it was worthwhile going to court in the hope of getting a significantly higher award. It cannot be said that such a decision was unreasonable at the time.
[30] The purpose of cost consequences of reasonable offers is to encourage settlement. On the other hand, onerous cost penalties should not discourage the seriously injured from a proper hearing and a chance to obtain a higher award, nor should they seriously subtract from what the court has found is appropriate compensation for the injury.
[31] Considering the factors set out in the Rules, it is my opinion that the interests of justice are best served in this case by awarding Mr. Tompkins his costs and disbursements up to and including October 31, 2011, but disallowing them after that date, with the Third Party to bear its own costs. There is then a consequence for not accepting a reasonable Offer, but the consequence is not unduly punitive in the circumstances.
Today’s case is also worth reviewing for the Court’s discussion of various Part 7 Deductions following a tort action.
In a rare judicial intervention into a lawyer’s practice, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, stripping a lawyer from all of his cases relating to the residential school Independent Assessment Process class action settlement. The Court determined it had jurisdiction to make such an order pursuant to section 12 of BC’s Class Proceedings Act.
In yesterday’s case (Fontaine v. Canada (Attorney General)) lawyer David Blott was on record ‘for approximately 2,900 (IAP) claimants‘. ‘Concerns‘ were raised with respect to this lawyer’s practice. These led to an investigation of the lawyers practice resulting in a final report with various troubling findings (these are highlighted at paragraphs 17 and 18 of the reasons for judgement).
An application was made seeking significant judicial intervention including an order stripping the lawyer of all of his IAP files. In granting this extraordinary relief, Madam Justice Brown provided, amongst other criticism, the following comments:
[167] The conclusion of the LSA panel regarding Mr. Blott’s conduct bears repeating:
But after considering all of the evidence in this matter and hearing Mr. Blott, we continue to be concerned that Mr. Blott does not appear to understand what it means to be a lawyer. We are concerned that Mr. Blott appears not to recognize that his primary role is as a fiduciary and everything else is secondary.
[168] I share the LSA’s concern that Mr. Blott does not understand what it means to be a lawyer. Further, while I also understand the desire to avoid additional victimization of the members of an already-vulnerable class, a more lasting remedy than the interim measure implemented by the LSA is required. The process approved by the LSA, and advanced by Mr. Blott on this application, would see at least 1,500 clients moved from the Blott firm to other lawyers in any event. Viewed in that light, the issue is not whether disruption will be experienced by Blott clients, but rather the number of clients who will experience it.
[169] It would be far better to have this client transfer process conducted under the supervision of the court and it is necessary for the integrity of the process and the protection of the clients that it be a complete transfer. Therefore, I will accept and implement the Monitor’s recommendation in respect of the removal of David Blott, David Blott Professional Corporation, Blott & Company, and any associated entity from the current or future representation of claimants in the IAP or any other process embodied in the settlement.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a wrist injury causing long term limitations.
In this week’s case (Jackson v. Jeffries) the Plaintiff was involved in a 2008 head on collision. The Defendant admitted fault for the crash. The Plaintiff, who had learning difficulties, trained to be a plumber and was working as an apprentice plumber by the time of the collision. The crash caused a Scapholunate ligament injury to his wrist which required surgery. He was left with persistent pain and stiffness in his wrist and, as a result of these limitations, was no longer medically suited for his physical career. In assessing non-pecuniary damages at $75,000 the Court provided the following reasons:
[39] Dr. Perey, an orthopaedic surgeon specializing in hand, wrist and elbow surgery, saw Mr. Jackson on February 4, 2010, on referral from Dr Wong. Mr. Jackson was complaining of activity related wrist pain, notwithstanding that x-rays and an MRI did not reveal any abnormality. Dr. Perey suspected a scapholunate ligament tear which was confirmed during wrist arthroscopic surgery performed May 10, 2010.
[40] Following surgery, Mr. Jackson was placed in a splint for 10 days followed by a cast for 8-10 weeks. Dr. Perey wrote in his medical report of August 31, 2010, that Mr. Jackson was making “remarkable strides” although he had residual pain and stiffness.
[41] It was Dr. Perey’s prognosis that Mr. Jackson’s symptoms would continue to improve, but that he would likely have some persistent pain and stiffness with his wrist which would be aggravated by heavy use. Dr. Perey recommended “a re-training program to a less physically demanding occupation than a plumber.” He concluded Mr. Jackson could “resume intermittent physical activities involved in hobbies and sports.”…
[71] As Dr. Feldman described, Mr. Jackson has a partial permanent disability which will result in him not being able to continue as a plumber in the future. He will be left with ongoing back pain and stiffness and weakness in his wrist.
[72] Mr. Jackson is not fitted to labouring-type work or other work which will place strain on his back and wrist. The range of potential occupations has been narrowed as a result of the injuries…
[84] As the cases are similar on their facts, I award Mr. Jackson non-pecuniary damages of $75,000.