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Left Hand Turning Vehicle Found Faultess for Intersection Crash

Written by admin on . Posted in ICBC Liability (fault) Cases. 54 Comments on Left Hand Turning Vehicle Found Faultess for Intersection Crash

Motorists are entitled to commit to an intersection and wait until its safe to proceed prior to making a left hand turn.  If the light turns red prior to a safe moment arriving it is appropriate for a motorist to wait that long prior to completing their turn.  In such circumstances a turning motorist can be found fully faultless if a collision occurs which was demonstrated in reasons for judgement released last month by the BC Supreme Court, Vancouver Registry.
In last month’s case (Henry v. Bennett) the Defendant was driving NorthBound on King George intending to make a left hand turn on 68th Avenue.  At the same time the Plaintiff was travelling Southbound on King George intending to drive through the intersection.

The Court found that the Defendant entered the intersection on a green light.  She waited for a gap in traffic.  The light eventually turned amber and then red.   Southbound traffic visible to the Plaintiff stopped.  She began her turn when the Plaintiff came through the intersection and the collision occurred.  The Plaintiff sued for damages but the claim was dismissed with the Court finding him fully at fault for entering the intersection on a red light when it was unsafe to do so.  In finding the Defendant faultless Madam Justice Ballance provided the following reasons:






[72] Ms. Bennett was in a position remarkably similar to that of the plaintiff in Kokkinis. Although she did not see Mr. Henry prior to the collision, Kokkinis indicates that it does not necessarily follow that she was in any way negligent. Having said that, I wish to clarify that I do not read Kokkinis as standing for the proposition that left-turning drivers are entitled to proceed blindly on the assumption that oncoming drivers will obey the rules of the road, without regard to their concurrent obligation to act reasonably as the circumstances dictate. In my view, Ms. Bennett was entitled to proceed on the assumption that oncoming traffic, including Mr. Henry, would act in accordance with the law and come to a stop on the late amber, absent any reasonable indication to the contrary and provided she comported herself with reasonable care. Here, there was no contrary indication from Ms. Bennett’s standpoint. Indeed, she could see that the SUV across from her had complied with the rules and she was aware as well that the flow of straight through traffic had ceased some seconds earlier. She had no reasonable indication that oncoming traffic in the form of Mr. Henry would proceed through the intersection in clear violation of the rules of the road. Moreover, I find that in all the circumstances she conducted herself prudently and with reasonable care in negotiating her left turn. In contrast, Mr. Henry knew or reasonably ought to have known that in all likelihood Ms. Bennett would have carried through with her left turn at the final stage of the amber light, and most assuredly when the signal turned red. He created an extremely unsafe situation in failing to come to a stop.

[73] I endorse the case authorities that cast doubt over the legitimacy of portraying a driver in Mr. Henry’s shoes as having the presumptive right-of-way or otherwise qualifying as the dominant driver for the purposes of assessing liability using the Walker paradigm: see, for example, Snow v. Toth, [1994] B.C.J. No. 563 (S.C.); Shahidi v. Oppersma, [1998] B.C.J. No. 2017 (S.C.); Ziani v. Thede, 2011 BCSC 895. The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully and, it seems to me, is of utility in that circumstance only. I, therefore, question whether that framework is of any assistance to a driver like Mr. Henry, who has acted in breach of his statutory duty. In any case, it cannot be said that Ms. Bennett attempted to execute her turn in complete disregard of her statutory duty to yield, which is an integral component of the Walker analysis. Indeed, it is my view that Ms. Bennett can be validly characterized as the dominant driver in the circumstances. There is no cogent evidence to remotely suggest that she could have avoided Mr. Henry by the exercise of reasonable care. To formulate it in the terms of s. 174, Ms. Bennett posed an immediate hazard to Mr. Henry, which he should have appreciated, and it is he who ought to have yielded the right-of-way.

[74] Based on the foregoing, I am satisfied that the accident was caused solely by the negligent driving of Mr. Henry. As he is entirely at fault for the accident, his claim is dismissed.







Tort Reform For The Better: Adding Liquidity to Dry Judgements

Written by admin on . Posted in ICBC Brain Injury Cases, Tort Reform, Uncategorized. 61 Comments on Tort Reform For The Better: Adding Liquidity to Dry Judgements


Below is a brief article which was first published yesterday at Slaw.ca, one of Canada’s best read and most recognized legal blogs.  For your convenience I republish the article here in its entirety.  If you find this topic of interest I suggest you visit the original article and weigh in on the comments that follow.
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I’ve written many times that the phrase tort ‘reform‘ is often used in association with efforts to strip the rights of injury claimants.  Reform, however, is a neutral concept in and of itself.  Reform simply means change and the change could be for better or worse.  With this in mind  I’d like to share a tort reform idea for the better which recently crossed my mind.  In short the idea is to add a pool of liquidity to rectify the injustice of dry judgement.
The thought crossed my mind as I was reading reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.  In this week’s case (Saether v. Irvine) the Plaintiff was injured when the Defendant battered him.  The consequences were “profound and catastrophic” causing a brain injury that “severely compromised (the plaintiff) in virtually all facets of his life“.  Damages of $1,075,000 were assessed to cover the Plaintiff’s anticipated future care costs alone.  Given the fact that this case involves an intentional tort it is a safe bet that this judgement will be uninsured and likely (at least partially) dry.
Reading this reminded me of a 2005 case (Chow v. Hiscock) where the Court expressly recognized the injustice of dry judgement facing a plaintiff left “in a permanent semi-vegatative state” following a “brutal, unprovoked assault“.  The Plaintiff’s future care costs were anticipated to exceed $4,000,000.  Madam Justice Koensberg made the following comments hoping the Plaintiff would some day be able to receive some of these funds from the uninsured defendants:
[40]           Can I say that this is still a case where punitive damages should be awarded?  If I were to award punitive damages, it would be purely symbolic.  I have heard nothing which indicates that the magnitude of this award or even some small part of it is likely to be payable by any of these three young men.  One can hope that they find a straight path to earn a significant amount of money or that one even wins the lottery, so that the earnings could be available to increase Mr. Johnson’s quality of life.
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgments.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.

Woodlands Survivor Class Action Application Deadline Extended to September 2012

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

Earlier this year the BC Supreme Court refused to approve a class action settlement involving historic sexual abuse claims where the proposed settlement would impose a limitation period for class members where one would not otherwise exist.  Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the balancing act of sexual abuse class action settlements and imposed limitation periods.
This week’s case (Richard v. British Columbia) involved the Woodlands school class action settlement which was initially approved on July 7, 2010.  One of the terms of the settlement required class members to advance their claims by September 19, 2011.  The deadline came and went and due to the complexity of the claims only a handful met the filing deadline.  An application was brought to extend this deadline.  Such applications were contemplated in the original settlement agreement.
Mr. Justice Bauman agreed that an extension was appropriate although declined the Plaintiff’s request for an indefinite extension.  Instead the Court moved the claims deadline to September 19, 2012 “without prejudice to the plaintiffs’ right to apply for further extensions“.  In striking this balance the Court provided the following comments seeking to reconcile the need for certainty in resolution against the need to protect BC sex abuse victims who generally aren’t faced with a limitation period in advancing their civil claims for damages:
[17]         I agree with the defendant that the application requires the Court to strike a balance between the parties which recognizes that in the give and take of the settlement negotiation process, each side made compromises to achieve their respective goals. It would be unfair, after the fact, to effectively take from one party a critical part of what it gained in the process through negotiation and compromise.
[18]         But in all the circumstances of this settlement, I do not believe that a substantial extension of the claims deadline can be so construed (especially in light of the fact that no limitation period attaches to these claims or at least a very substantial number of them). Still, an indefinite extension is not appropriate. I would, at this time, extend the claims deadline by one year to 19 September 2012, without prejudice to the plaintiffs’ right to apply for further extensions. It is not appropriate to condition this extension, as the defendant proposes, by requiring the Class Members to file a so-called “without prejudice interim claim” within three months. In my view, such a condition would effectively make the claims deadline extension illusory in the circumstances of the difficulties facing the plaintiffs and their counsel in advancing the claims process.

Documented "Prior Inconsistent Statements" Need To Be Listed Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with document listing obligations under the new Rules of Court.
In last week’s case (Tran v. Kim Le Holdings Ltd.) the Plaintiff sued for damages as a result of personal injuries.  In the course of trial the Defendant called a witness who gave evidence as to the circumstances of the Plaintiff’s injury which were not favourable to the Plaintiff’s case.  The same witness had provided the Plaintiff’s lawyer a statement years before the trial with a different version of events.  The Plaintiff failed to disclose the existence of this document in her list of documents.  The Plaintiff argued that the new Rules of Court don’t require such statements to be listed as they only go to credibility which is a collateral matter.
Mr. Justice Harris disagreed finding that statements containing prior witness inconsistencies can go beyond the issue of credibility and therefore need to be listed.  The Court provided the following reasons:

[13] Counsel submits, first, that a prior inconsistent statement is not a document that could be used to prove or disprove a material fact. It is a document relevant only to credibility. Therefore, it is not required to be listed. Secondly, counsel submits that until the contradictory evidence was given by the witness, counsel had no intention of using the document at trial. The use of the document has only become necessary because of the surprise in the evidence that was given.

[14] I turn to deal with this point. I must say that I am sceptical that the plaintiff’s argument is correct. It is common ground that the document here is covered by litigation privilege, which necessarily ties it into relevant issues in the litigation. Rule 7?1(6) governs the listing of privileged documents. It is not obvious to me from the wording of the rule that the scope of the obligation set out in Rule 7?1(6) is qualified or limited by Rule 7?1(1).

[15] More importantly, however, prior inconsistent statements can be used, in my view, to prove or disprove material facts. Depending on how a witness responds to the statement when put to the witness, the effect of the use of the statement may well go beyond merely affecting credibility. The witness may adopt the content of the statement insofar as it relates to material facts; in that sense, at least, statements can facilitate the proof of material facts. Statements can facilitate the proof of material facts even if the witness does not adopt them, because findings on material facts may be affected by findings on credibility. But if a witness does adopt a prior inconsistent statement and accept the truth of it, that statement may be used as proof of the truth of its contents, and thereby be used to prove or disprove material facts.

[16] A fine parsing of the obligation to list documents is, in my view, contrary to the policy of disclosure which is exemplified by the Stone decision in the Court of Appeal.

Mr. Justice Harris agreed that while the document should have been listed, it could be used in cross examination as the failure to list was done in good faith and further there was no real prejudice to the Defendant.  In doing so the  Court applied the following factors in exercising its discretion:

[19] … What is clear, however, from these cases is that my discretion has to be exercised on the basis of the following principles:

(a)      whether there is prejudice to the party being cross-examined ?? in this case, of course, it is a witness who is being cross-examined, but the relevant prejudice is to the defendants;

(b)      whether a reasonable explanation of the party’s failure to disclose has been provided;

(c)      whether excluding the document would prevent the determination of the issue on its merits; and

(d)      whether, in the circumstances of the case, the ends of justice require the documents to be admitted.

[24] It is evident that there is a policy against insulating a witness from cross-examination on prior inconsistent statements, because to do so would undermine the search for truth. It is also evident that requiring listing can be seen in some respects as being inconsistent with the purpose of litigation privilege. Both of these points were accepted in the Cahoon decision, in the context of a discussion of the limitation, or explanation, of the scope of the Stone decision…

[33] I observe further, with respect to prejudice, that the defendants could readily have determined whether or not the witness had given a statement. The fact of the existence of the statement was within the knowledge of the defendants. It is not a situation quite like Stone where there would simply be an assumption by counsel that a pain journal had likely been kept and that the fact of the existence of the document could not be verified without the document having been listed. In my view, this mitigates the prejudice, to some degree, that is associated with the use of the document.

[34] Weighing and balancing these conflicting principles, I have reached the conclusion that, in the interests of justice, counsel ought to be permitted to use the document for the purpose of cross-examination.

Plaintiff Awarded $9,500 Costs Despite $4,000 Damage Assessement

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 1, BCSC Civil Rule 14, BCSC Civil Rule 15.


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.
In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision.  ICBC disputed both fault and injury.  At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded.  The Plaintiff sought her costs.  ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.
Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court.  Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15).  The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1.         the legal or factual complexity of the case;

2.         the need for discovery of documents and examinations for discovery;

3.         the need for a judgment enforceable outside of British Columbia;

4.         a bona fide preference for a jury trial;

5.         access to the summary trial procedure available in Supreme Court; and

6.         the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.

$200,000 Non-Pecuniary Damage Assessment for "Complicated" Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, assessing global damages at $836,000 for injuries and loss flowing from a motor vehicle collision.
In last month’s case (Gilbert v. Bottle) the Plaintiff was a passenger in the Defendant’s vehicle.  His careless driving caused the vehicle to lose control ejecting the Plaintiff from the vehicle.  She sustained numerous physical injuries the most significant of which was described as a ‘complicated‘ traumatic brain injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Madam Justice Dickson made the following findings:
190] I conclude that Ms. Gilbert suffered a complicated mild traumatic brain injury with significant and permanent sequelae as a result of the accident…
[191] I also conclude that the change in Ms. Gilbert’s substance abuse pattern is substantially connected to her brain injury symptoms.  Dulling physical and emotional pain with crack cocaine shows markedly poor judgment and poor self-control.  Ms. Gilbert’s already inadequate functioning in these areas has been further compromised by her injuries.  In consequence, her substance abuse problem has altered in a significantly negative way…
[195] I further conclude that Ms. Gilbert suffers from chronic pain disorder as a result of the accident.  The pain includes frequent neck, shoulder and back pain, together with cervicogenic headaches which originate from soft tissue injuries to her neck.  I am satisfied that her pain is genuine in the sense that it is not feigned or goal-directed, although it has a significant psychological, as well as physical, component.  In particular, Ms. Gilbert’s pre-existing emotional vulnerability and increased emotional disturbance caused by her brain injury are both substantially connected to the severity and maintenance of her ongoing pain.  The onset of the pain is a result of the accident…

[198] The extent of Ms. Gilbert’s loss due to her accident-related injuries is substantial.  She is, in my view, a thin skull plaintiff.  Before the accident, she lived a borderline existence due to her harsh environment, disorganized lifestyle and poor general health and habits.  As Dr. Travalos points out, however, she was nonetheless able to work with New Directions.  She was also able to participate in and enjoy intimate personal connections.

[199] As a result of the accident, Ms. Gilbert can no longer do either.  In effect, she has lost the two major sources of pleasure, purpose and meaning in an already difficult life.

[200] Ms. Gilbert is and will probably remain competitively unemployable due to the effects of her traumatic brain injury.  Although her post-accident functional change is more substantial than Dr. Travalos assumed, I accept his view that her injuries tipped her over the edge in a vocational sense.  I also accept that Ms. Gilbert’s quality of life may improve with appropriate support and treatment.  I am satisfied, however, that, even with support, she will probably never work for pay again…

[220] I conclude that an award of $200,000 in non-pecuniary damages is appropriate in all of the circumstances.  Ms. Gilbert’s permanent loss of capacity to work and engage emotionally with others is a great loss given their central significance in her difficult life.  In my view, Ms. Gilbert’s consequent need for solace is also great.  Nevertheless, she is entitled to compensation for only the change to her original position.  The award should not extend to her pre-existing difficulties that would have persisted or deteriorated further regardless of her injuries.  In other words, the award must be fair and reasonable to both parties.

Treating Surgeon Allowed to Give Expert Evidence Despite Non-Compliance With Rules of Court

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized.


Although the BC Supreme Court Rules have strict requirements with respect to the admission of expert opinion evidence Rule 11-7(6) gives the Court a wide discretion to dispense with these if “the interests of justice require it“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this discretion.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.  At trial the Plaintiff presented expert opinion evidence from a privately retained physiatrist.  The Plaintiff’s treating orthopaedic surgeon was also called to the stand, however, he was not called as an expert witness but rather as a witness of fact.  Despite this limitation the Court exercised its discretion under Rule 11-7(6) and permitted the treating surgeon to give opinion evidence addressing diagnosis and prognosis.  In doing so Mr. Justice Davies provided the following reasons:

[55] Dr. Zarkadas was not called as an expert witness at trial but he is obviously a well-qualified orthopaedic surgeon. He is also Ms. Milliken’s treating physician concerning her right shoulder difficulties.

[56] As such he was able to assist me in assessing Ms. Milliken’s future prospects if the surgery is undertaken or if it is not. To that extent, his more immediate involvement with and treatment of Ms. Milliken allows insight that was not previously available to Dr. Andrew Travlos (adduced as opinion evidence by the plaintiff) arising from his examinations and enquiries six months earlier.

[57] In those circumstances, notwithstanding the failure of the plaintiff to seek to have Dr. Zarkadas qualified to provide opinion evidence, I determined to receive his evidence concerning his diagnosis and prognosis related to Ms. Milliken’s right shoulder injuries.

[58] I did so over the objection of the defendant because of my belief that the determination of damages in this case should be based upon the best evidence available.

[59] In my opinion, the ability to achieve a just result should be served, rather than thwarted, by the application of procedural rules.

[60] The Court’s power to exercise discretion to allow relief from the harsh consequences of non-compliance with procedural rules recognizes that principle.

[61] I also, however, recognized that the defendant could be prejudiced by the admission and consideration of Dr. Zarkadas’ prognostic evidence if not given an opportunity to answer it.

[62] I accordingly provided the defendant an opportunity to consider whether to call rebuttal evidence before rendering judgment.

[63] I was subsequently informed that the defendant did not intend to do so.

Driver Fully Liable Following Passenger Ejection From Box of Pick Up Truck

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

The BC Court of Appeal released reasons for judgement this week assessing a driver 100% at fault for serious injuries to a passenger who was ejected from the box of his pick-up truck.
In this week’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck.  The 12 year old Plaintiff was one of these children.  In the course of the trip the defendant ”first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
The Court heard no evidence as to how the Plaintiff came to fall out.   At trial the motorist was found at fault for negligently allowing the Plaintiff to ride in the box.  The Plaintiff was also found 25% at fault with the Court concluding that the Plaintiff “must have at least moved from a seated position” in being ejected.  The Plaintiff appealed this finding arguing there was no evidence to support this conclusion.  The BC Court of Appeal agreed and placed 100% of the blame on the motorist.  In doing so the Court provided the following reasons:

[14] A plaintiff must take reasonable care for his or her own safety. The question when considering reasonable conduct by children is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Ottosen v. Kasper (1986), 37 C.C.L.T. 270 at 275; McEllistrum v. Etches [1956] S.C.R. 787 at 793).

[15] In this case, we do not know why Inquala stood up or even if he stood up voluntarily. As already noted, no one gave evidence about how Inquala left the back of the truck – whether he got up himself and fell out, whether he was bounced out, whether he was pushed out, whether a wasp was buzzing around him, or whether the other children were harassing him and he had to move. There was no evidence of the circumstances that caused him to get up from his seated position and, therefore, there is no basis for a finding that Inquala did not take reasonable care for his safety. Such a finding is based on speculation.

[16] In my respectful view, there was no foundation in the evidence upon which the trial judge could reasonably infer that Inquala was contributorily negligent. This conclusion is a palpable and overriding error, with which we may interfere.

[17] I would allow the appeal, set aside the part of the order which found Inquala contributorily negligent, and assess liability to Mr. Stevens at 100%.

Lawsuit Against Delta Police Following Bar Fight Dismissed

Written by admin on . Posted in Occupier's liability claims, Uncategorized.


Lengthy reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of a personal injury lawsuit launched by a former NHL enforcer against the Delta Police and others following a 2006 assault which occurred at the Cheers Pub in Delta, BC.
In this week’s case (Burnett v. Moir) the Plaintiff suffered a moderately severe traumatic brain injury after being struck on the head with a bar stool.  The injury ended the Plaintiff’s professional hockey career.
There was video surveillance which showed “an assailant striking the plaintiff on the head with a bar stool taken from the premises afer he apparently stumbled and fell to the ground as he and the others were being ejected“.  The assailant was never identified.
The Plaintiff sued the owners and managers of the Cheers Pub, the local police, and the local government for compensation for his personal injuries.  Prior to trial he settled his case with the Pub.  The Plaintiff alleged that the local police and the local government were liable because they “failed to properly identify Cheers as a nuisance to the public, a trap for the unwary, and to take pre-emptive steps to abate the danger it represented to potential patrons”.
The Plaintiff led evidence to support his allegations including evidence that from 1998-2007 “there were a total of 2,410 police service calls to Cheers during that period, 231 of which were for assaults, 9 of which were for uttering threats, 10 of which were obstructing a peace officer, 138 for suspicious person/vehicle occurrences, 200 of which were for creating a disturbance, 217 for “unspecified assistance” and 1,605 of which were for “other”“.
Despite this evidence the lawsuit was dismissed with the Court finding that the Police and Local Government did not owe the Plaintiff a duty of care in these circumstances. Mr. Justice Cullen summarized his analysis as follows :

[411] The presence or absence of a close causal connection between the negligence alleged and the harm caused is a factor in determining proximity.  In Odhavji Estate v. Woodhouse, supra,Iacobucci J. held as follows in the context of a proximity analysis at para. 57:

Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties.

[412] Where, as here, the causal connection, insofar as the failure to warn is concerned, is remote and speculative rather than close, it cannot be said that the nexus between the parties is strong or compelling.

[413] For those reasons, while finding some limited evidence of a connection between the Delta Defendants and prospective Cheers patrons arising from the police corporate knowledge that a person entering Cheers was likely to be exposed to an environment involving some violent or turbulent circumstances, I am not satisfied the evidence reaches the level of establishing a close and direct relationship featuring the indicia of proximity identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth, supra, or manifested in other decisions such as Jane Doe, Mooney, orSchacht.

[414] I thus conclude the relationship at issue does not sustain sufficient proximity to found a duty of care.  The plaintiff was but one of a large indeterminate pool of potential patrons of Cheers, rather than an identifiable potential victim of a specific threat.

$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Shoulder Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury.
In this week’s case (Milliken v. Rowe) the 37 year old plaintiff suffered a variety of injuries in a 2007 collision.  The Defendant motorist admitted fault.  The Plaintiff’s most serious injury resulted in chronic shoulder pain the cause of which was described as “one of two things or both in combination which include biceps tendonitis and AC joint antropathy“.
The Plaintiff endured a variety of medical interventions none of which meaningfully resolved her injury.  Surgery was expected to have no better than a 50/50 chance of improving her injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Davies made the following findings:
[65] I find that the totality of the evidence establishes that the neck and shoulder pain as well as the headaches, back pain and right leg pain which Ms. Milliken has suffered since August 2007 were caused by the defendant’s negligence…

[83] Ms. Milliken was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort (primarily at work). The effects of those injuries were largely resolved within about two years.

[84] Ms. Milliken also, however, suffered from right shoulder pain that did not resolve and has now been ongoing for four years. The only potential end in sight for the amelioration of the pain and suffering concerning her right shoulder is invasive surgery with about an even chance of success. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.

[85] I find that the pain Ms. Milliken has endured has been debilitating.

[86] While she has worked through much of it of necessity, the cost to her of doing so has been great.

[87] Her life has become a one-dimensional one in which activities unrelated to work have largely had to be put aside. She no longer has the stamina or physical ability to care for her home as she previously did and has become socially reclusive because of that and her constant tiredness.

[88] Ms. Milliken is no longer able to play with her grandchildren as she once did due to pain and discomfort in her shoulder. She no longer participates in making crafts or enjoying recreational pursuits with her family.

[89] Her injuries have also exacerbated the physical challenges which she now faces in caring for her husband and that prevented her from taking on some of the work around the home and yard for which he was previously responsible…

[91] Ms. Milliken’s suffering will also not end with this litigation.

[92] At minimum she must endure complex shoulder surgery and a lengthy period of rehabilitation in which she will continue to be unable to enjoy life as she once did. Her likely future enjoyment of life is also compromised by the prospect that the surgery may be wholly or partially unsuccessful.

[93] The totality of the evidence satisfies me that there is no question that Ms. Milliken will continue to suffer pain and suffering as well as loss of her enjoyment of life at least until after rehabilitation from surgery to her shoulder.

[94] There is also a substantial likelihood that she will suffer ongoing pain and suffering and loss of enjoyment into the future after the shoulder surgery…

[105] I award Ms. Milliken non-pecuniary damages of $85,000.