Tag: bc injury law

$85,000 Non-Pecuniary Assessment For Chronic Wrist Injury

Written by admin on March 5, 2018. Posted in ICBC Wrist Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a permanent wrist injury sustained in a vehicle collision.
In today’s case (Fatin v. Watson) the Plaintiff was involved in a 2014 collision. The Defendant disputed fault but ultimately was found 75% to blame.
The Plaintiff suffered a variety of injuries the most serious of which affected his wrist and was expected to be permanent. In assessing non-pecuniary loss at $85,000 prior to apportionment of damages Mr. Justice Grauer provided the following reasons:

[28] Dr. Fatin suffered a blow to his head and his left shoulder, but neither of these caused any lasting injury. The significant injury was to his right wrist. He suffered, and continues to suffer, from a condition called “SLAC wrist”. SLAC is the medical short form for scapholunate advanced collapse, and comprises injury to the right scapholunate ligament leading to intercarpal and radialcarpal osteoarthritis.

[29] This injury has had a marked effect on Dr. Fatin’s lifestyle. Although retired from medicine for some years, he has been very active in carrying out extensive renovations and landscaping to the homes and recreational properties in which he and his family have lived, and was active in activities such as golf and bocce. He can no longer lift a heavy item, wield a hammer, drive a screw, swing a golf club or put a backspin on a bocce ball. He wears a brace on his right wrist to minimize the pain that comes with movement.

[30] The injury itself and the wrist osteoarthritis were not caused by the motor vehicle accident, but were pre-existing degenerative conditions that were asymptomatic. It is not contested that the collision caused the osteoarthritis to become symptomatic, and that he will have a permanent disability in the form of pain, decreased wrist movement and decreased strength in the right upper limb.

[31] No one can say whether or when it would have eventually become symptomatic but for the accident. His treating plastic surgeon, Dr. Slobodan Djurickovic, who has a special interest in hand and wrist surgery, wrote in his report:

It is impossible to know whether or not he would have had significant wrist pain had he not been involved in an accident. It is my opinion that he likely would not have developed severe wrist pain. He had significant arthritic changes and no pain into his 75^th year and was able to golf etc. As a result I feel he would have likely had only mildly painful wrist arthritis at the most if it weren’t for the motor vehicle accident.

[32] I accept Dr. Djurickovic’s opinion. It is consistent with the opinion of the defence orthopedic surgeon, Dr. Brenda Markland, who wrote in her report:

It is likely that Dr. Fatin would eventually have become aware of the osteoarthritis in his right wrist, but it is difficult to predict exactly when that would have happened. After all, he made it to the age of 75 years without any symptoms, and might have lived out the rest of his life without knowing that the problem existed. However, a fall on the outstretched hand or the strenuous activity involved in renovations might have brought out the symptoms earlier, or the progression of the degenerative changes over time might have given him gradually increasing pain.

[33] Accordingly, I find that the motor vehicle collision caused Dr. Fatin’s pre-existing osteoarthritis to become symptomatic to the point where it became disabling, and that he would not have suffered that degree of disability but for the accident.

[34] The only potential treatment is surgical: either a wrist fusion, which would likely relieve pain but completely limit movement, or a wrist joint replacement (arthroplasty), from which, according to Dr. Djurickovic, Dr. Fatin could expect a reasonable result, with reduction in pain, increased range of motion, and more comfort in activities of daily living, lighter duties and hobbies. It is not clear that Dr. Fatin would be able to resume golf or undertake renovations, and he would be advised to continue wearing a splint for anything more than light activities.

[35] Given Dr. Fatin’s age and physical demands, as well as the fact that he is right hand dominant, it is Dr. Djurickovic’s recommendation that he undergo the wrist replacement procedure. Dr. Fatin is still considering his options…

[40] Dr. Fatin is a man who took great satisfaction from his ability to carry out manual tasks at which he was very good. These included, as I have noted, renovating his several houses, extensive maintenance, repair work, landscaping and gardening. He engaged in these all his life, including in his retirement. He has been considerably more active than many of his age. All of this has been greatly impaired by his injury. In addition, the leisure activities he has enjoyed in retirement have also been affected, particularly golf. For him, the loss of independence that we all face as we age has been greatly accelerated. Dr. Fatin has faced this stoically, but not without real frustration.

[41] There is no doubt that his injury is permanent. It is possible that wrist replacement surgery would improve things, but it would not cure the condition. Dr. Fatin has expressed some reluctance to proceed with such surgery because of experience he has had from procedures in the past where he has suffered side effects usually limited to 1% or so of the population. There nevertheless remains, I find, a real and substantial possibility that he will choose to undergo such a procedure, if for no reason other than to reduce pain and relieve frustration, and I assess the likelihood at 50%.

[42] Taking all of these factors into account, I assess Dr. Fatin’s claim for non-pecuniary damages at $85,000.

Court Dismisses "Low Velocity Impact" Collision Claims in Part Based on Forseeability

Written by admin on March 1, 2018. Posted in ICBC LVI (Low Velocity Impact) Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissed claims for injuries from 5 separate collisions.
In today’s case (Greenway-Brown v. Kyung) the Plaintiff was involved in 5 separate collisions and alleged injury. The Court dismissed two of the claims based on liability. Of the remaining 3 the Court found that the Plaintiff did not meet her burden in proving injury. Interestingly, the Court then went even further and noted that as a matter of law it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot. This seems to contradict the reasoning from the BC Court of Appeal and numerous other so-called low velocity impact prosecutions. In any event, Mr. Justice Macintosh provided the following reasons extending the Mustapha reasonsing to low velocity collisions:

[51] Ms. Brown has not established the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude. While the Court in Mustapha recognizes that a defendant must take a plaintiff as it finds him, or her, for purposes of damages, focusing on a person of ordinary fortitude, for the purposes of determining foreseeability, will not be confused with the “eggshell skull” situation, where, as a result of a breach of duty, the damage inflicted proves to be more serious than expected.

[52] Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well. Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis. Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude. In the three accidents, 2, 3, and 5, all of the available objective evidence, including the photographic evidence of the Jeep after several of the accidents, makes it wholly improbable that the Plaintiff suffered damages, or could suffer damages, from the three parking lot episodes.

[53] The Plaintiff’s mental and physical conditions, of which she complains, pre-existed the second accident upon which she sues, and were exacerbated by her obesity and other physical conditions unrelated to the three accidents. A defendant need not put a plaintiff in a position better than his or her position but for the defendant’s conduct. See, Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34–36. For Ms. Brown to receive damages from accidents 2, 3, and 5 would be to offend the principle expressed in Athey.

$80,000 Non-Pecuniary Assessment for Chronic and Disabling Soft Tissue Injuries

Written by admin on February 23, 2018. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and partly disabling injuries caused in a collision.
In today’s case (Senger v. Graham) the Plaintiff was involved in a 2014 collision. The Defendant accepted fault. The crash caused chronic soft tissue injury which disabled the Plaintiff from her chosen profession as a dental hygienist. In assessing non-pecuniary damages at $80,000 Madam Justice Murray provided the following reasons:

[43] Taking into account all of the evidence I find the following:

i. The injuries suffered in the accident have interfered with Ms. Senger’s schooling, work, household and recreational activities and will continue to do so;

ii. She is limited in her capacity to work as a dental hygienist and will not be able to sustain a career in that field;

iii. Ms. Senger will likely never be able to work full-time;

iv. Her injuries will continue to plague her for the rest of her life. It is unlikely that she will ever be pain free;

v. She has reached her maximum rehabilitation;

vi. Ms. Senger will always require assistance with housekeeping and yard work; and

vii. She will never be able to engage in many of the activities she previously enjoyed.

…

[49] Considering the case law and all of the circumstances, I am satisfied that an award of $80,000 for non-pecuniary damages is appropriate.

$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

Written by admin on February 19, 2018. Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.
In today’s case (Gauthier v. Dubois ) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant. Fault was admitted. The Plaintiff suffered a variety of injuries many of which enjoyed good recovery. Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery. In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128] Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129] Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130] I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131] Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132] Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133] The plaintiff advances no argument in this regard.

[134] Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135] Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136] Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137] I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138] It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139] Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.

Security Guard Run Over By Fleeing Thief Found Not Contributorily Negligent

Written by admin on January 25, 2018. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing fault for a crash involving an unidentified motorist.
In the recent case (MacKenzie v. John Doe) the Plaintiff was working as a security guard when he noticed a shoplifter. He pursued the shoplifter to his vehicle. When confronted the shoplifter ran the plaintiff over and injured him. The collision was described as follows:

[17] The plaintiff described what happened. When the individual was further along the sidewalk, the plaintiff observed him getting into the driver side of a parked vehicle. The plaintiff approached the vehicle’s passenger side and opened the door, saying “store security”. He asked for the merchandise back. The individual responded, “fuck you”, and then put the key in the ignition, started the ignition, and immediately started reversing the vehicle into the parking lot.

[18] At that time, the door of the vehicle hit the plaintiff in the chest, causing him to lose his balance. His feet slid under the passenger-side door. The plaintiff hung onto the passenger-side door as the individual reversed his vehicle out of the parking spot. He asked the individual to stop the vehicle but the individual did not do so and then the plaintiff let go. When he let go, the passenger-side door hit him. As a consequence, he lost his footing, fell and struck the back of his head on the concrete, at which point he believed his legs went under the vehicle. The individual continued driving in reverse gear all the way up a ramp where he then spun around and drove away at quick speed, quicker than the speed one would normally go when reversing a vehicle, the plaintiff testified.

[19] The plaintiff attempted to get up. However, a bystander said “I am not sure if you realize what just happened to you. You should probably stay down”. So he did. First aid arrived shortly after and then the paramedics.

The shoplifter remained unidentified and the Plaintiff applied for statutory compensation from ICBC for the hit and run collision.

ICBC argued that the Plaintiff was partly at fault for the incident. The Court disagreed and in finding the Plaintiff acted reasonably in pursuing the thief Madam Justice Maisonville provided the following reasons:

[88] I find that, in this case, the vehicle had not been started when the plaintiff approached it. I find that the car key was not in the ignition when the plaintiff opened the vehicle’s passenger-side door and, as such, the plaintiff could not reasonably anticipate carelessness or even the events as they transpired, which involved flagrant and deliberately reckless conduct…

[93] Consequently, where the defendant’s negligence rises to a level of flagrant and deliberate recklessness, the plaintiff cannot be found to be contributorily negligent, as reprehensible behaviour from a defendant is not reasonably foreseeable.

[94] Another aspect of the case before me negating contributory negligence is the fact that the plaintiff was not in violation of his company’s policy, and I cite Lewis v. Todd, [1980] 2 S.C.R. 694 in support. In Lewis, it was dark out, and an officer wearing a dark uniform was struck by a car and killed while on duty. The trial judge found no contributory negligence. On appeal, the Ontario Court of Appeal found the officer to be 25% negligent. However, on further appeal to the Supreme Court of Canada, that decision was reversed. At page 700, the Court stated:

The Court of Appeal found that Constable Lewis should not have continued unassisted with his investigation on the road. To do so was negligent. The evidence was, however, that Constable Lewis did not depart from police practice. The trial judge did not misapprehend the evidence, or ignore evidence which would have suggested that police standards required more than one officer at an accident. There was no evidence, then, to support the conclusion that Constable Lewis needed assistance and that he was negligent in not asking for it. …

[95] Given that there were circumstances which should have alerted other drivers to the presence of police officers on the highway, the court in Lewis held that there was no negligence on the part of the officer, including on the basis that he failed to keep a proper lookout.

[96] Here, in like circumstances, the defendant was well aware of the presence of the plaintiff, who asked him to stop, yet chose to ignore him and instead respond with a terse, profane answer and reverse the vehicle. I find that the plaintiff could not have reasonably foreseen what occurred, that the defendant was flagrant and deliberately reckless, and that the plaintiff is in no way contributorily negligent for the accident which occurred.

$75,000 Non-Pecuniary Assessment for Chronic Myofascial Injuries

Written by admin on January 24, 2018. Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic injuries sustained as a result of two collisions.
In today’s case (Anderson v. Gagnon) the Plaintiff was involved in two collisions that the Defendants were responsible for. The collisions resulted in chronic myofascial injury which lingered to the time of trial several years later with a prognosis of some likely lingering symptoms. In assessing non-pecuniary damages at $75,000 Mr. Justice Armstrong provided the following reasons:

[93] In this case, I am satisfied that the plaintiff has suffered a myofascial injury to the paraspinal muscles of the back of her neck, the trapezius rhomboid muscles of the upper back that are chronic and will be ongoing. There are no findings of underlying disc injury or nerve root impingement or other potential injuries.

[94] The plaintiff’s complaint of chest symptoms is not significant and likely reflect changes as a result of her myofascial pain.

[95] I accept Dr. Travlos’ conclusion that the hip symptoms cannot be attributed to the accident. The plaintiff has been diligent in participating with various treatment opportunities and those therapists have been the mainstay of her treatment and pain management. The optimum strategy is to continue her exercise activity although she may not respond positively given the length of time the symptoms have persisted since the accident.

[96] Intermittent massage therapies, physiotherapy and acupuncture are reasonable treatments for the plaintiff to pursue as a means to minimize the interference in her life activities caused by pain. She may also benefit from the use of some anti-inflammatory medications in the case of flare-up of pain.

[97] Although there is medical evidence that her ongoing symptoms might last indefinitely, or may not resolve in the near future, there are possibilities for improvement as evidenced by Dr. Travlos’ and Dr. Arthur’s recommendations and opinions.

[98] Overall, the plaintiff is capable of doing chores and activities around her home but must be cognizant of the pain management techniques necessary to enable her to be active. Although she is capable of working full-time, some reduction in work hours may assist her with better pain management. I accept Dr. Travlos’ opinion that she is capable of working longer hours but may benefit from reducing the number of days worked during the week work. This reduction in work is essentially another tool Ms. Anderson has to manage her pain. It contributes to her overall enjoyment of life.

[99] I am satisfied the plaintiff endures intermittent variable pain that is most taxing on days when she is more physically active or working. The plaintiff’s symptoms tend to worsen between physiotherapy or massage treatments. The symptoms rise to very discomforting levels and are ameliorated by those treatments and it would appear this pattern will continue for the foreseeable future. These injuries have limited her ability to enjoy dancing, skiing, snowshoeing, prolonged cycling, and activities with her children. The evidence suggests that she is fit and works consistently at maintaining her physical condition notwithstanding the symptoms of her injuries.

[100] As a result of her inability to consistently and thoroughly clean and maintain her house, she has received housekeeping assistants; initially this happened every two weeks but has since been reduced to help once a month due to the cost…

112] Taking into account the plaintiff’s age, the severity and duration of her pain, the absence of actual disability and emotional suffering, the impact on her family, the limits to her physical abilities, and her stoicism, I award non-pecuniary damages of $75,000.

Medical Malpractice Claim Not Too Complex for a Jury to Understand

Written by admin on January 23, 2018. Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a defence request to have a jury struck from hearing a medical malpractice lawsuit.
In today’s case (Howe v. Hwang) the Plaintiff commenced a lawsuit alleging negligence following a series of complications relating to the surgical treatment of diverticulitis.
The parties settled on damages but the issues of liability (fault) remained open for the court to decide. The Plaintiff elected trial by jury. The Defendants objected arguing a medical malpractice case was too complex for a jury to understand. Master Keighley disagreed and provided the following reasons in upholding the Plaintiff’s right to trial by jury :

[41] My authority to grant the order sought is discretionary. In exercising this discretion, I must consider the issues holistically, in determining whether, at the conclusion of my analysis, the considerations raised by Rule 12-6(5) support the defence assertion that this case is not appropriate for a decision by a jury.

[42] It may go without saying that the jury in this case will be required to engage in a prolonged examination of documents, that the resolution of the issues before this jury will require a scientific or local investigation and that the issues are of an intricate and complex nature. Thus my discretion is engaged.

[43] Amongst the factors which I have considered in determining that it is appropriate to have this case tried by a judge and jury, I have considered the following:

1. The anticipated length of the trial.

[44] The trial will not be a long one. It is presently anticipated by counsel that it will take perhaps ten or 11 days of the three weeks set aside. This reduction in time is primarily the result of the resolution of the claims against Dr. Crowley, and the agreement which has been reached with respect to damages. The jury will not be obliged to retain the technical knowledge they acquire for many weeks before delivering its verdict

2. The number of experts to be called.

[45] As I have indicated, the plaintiff will be relying on two experts and the defendant on three.

3. The volume of expert evidence.

[46] As is the case with most expert reports, the text is dense and replete with scientific terminology. But in objective terms the reports, as I have indicated, total 32 pages, far from a vast volume of expert reports.

4. The nature and character of the expert evidence.

[47] The jury will be obliged to consider conflicting opinion with respect to the conduct of the defendant. I have reviewed the medical reports. While I am untrained in medical matters I have no difficulty in following the rationale expressed by the experts or understanding the terminology used. I cannot see that a jury, properly instructed, will have difficulty in coming to a conclusion on the basis of technical issues alone. The opinions of all five experts are clearly stated and, apparently, objective. Juries are, of course, often called upon to deal with conflicting expert evidence with respect to medical issues in the context of personal injury litigation. I do not regard the terminology which appears in the pleadings or the expert reports as being mysterious or opaque. I am confident that with supplementary assistance from the experts, counsel and the presiding judge, the reports may be appropriately dealt with by a jury.

[48] In summary, although the jury in this case will be obliged to deal with technically demanding scientific medical issues and unfamiliar terminology, as well as the conflicting evidence of experts, I am not satisfied that those considerations put this case beyond the range of functions credited to juries in our system.

[49] As previously indicated to counsel, the application is dismissed. The issue of costs was dealt with at the conclusion of the hearing.

$75,000 Non-Pecuniary Assessment for Chronic Back and Hip Soft Tissue Injuries

Written by admin on January 8, 2018. Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were published this week by the BC Supreme Court, Chilliwack Registry, assessing damages for chronic soft tissue injuries caused by a collision.
In this recent case (De Groot v. Heller) the Plaintiff was involved in a 2012 collision that the Defendant accepted fault for. The crash caused soft tissue injuries to her hip and low back along with an aggravation of a pre-existing arthritic condition. The symptoms lingered to the time of trial and were expected to negatively impact her moving forward. In assessing non-pecuniary damages at $75,000 Mr. Justice Greyell provided the following reasons:
[125] In my view, the evidence establishes that it is likely that the Accident aggravated Ms. De Groot’s underlying arthritic condition in her left hip. There is no evidence connecting her prior back complaints with back complaints brought on by the Accident. The lay witnesses called to testify on her behalf each confirmed that she was active in regularly walking her dogs and that she engaged in such activities as hiking, canoeing and horseback riding on the trips she made to the interior. It is also clear on the evidence that, post-Accident, her ability to engage in those activities is limited…

[130] At the time of the trial, almost five years had passed since the Accident. Ms. De Groot continues to suffer from pain in her lower back and hip, which prevents her from enjoying the activities she enjoyed prior to the Accident, and while she has not missed time from work, she has difficulty sitting for long periods. She has difficulty lifting and carrying her child, and performing heavier household tasks. She and her husband have experienced difficulty with intimacy due to her injuries from the Accident. Ms. De Groot’s prognosis for improvement is uncertain.

[131] After considering the principles set out in Stapley and the cases referred to by counsel, I award Ms. De Groot $75,000 in non-pecuniary damages.

Engineer Report Excluded Based on a "Where's the Science?" Objection

Written by admin on December 19, 2017. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, excluding the expert opinion of an engineer based on a report lacking adequate scientific foundation.
In the recent case (Young v. ICBC) the Plaintiff alleged being involved in a sideswipe collision caused by an unidentified motorist. ICBC argued no such collision occurred and instead the Plaintiff likely collided with a concrete barrier. ICBC attempted to introduce into evidence an engineering report to back up their theory. The court refused to introduce the report and in doing so provided the following reasons criticizing its scientific foundation:
[6] The plaintiff’s objection was summed up by her counsel in the phrase “where is the science?”. Mr. Antifaev submits that the report’s shortcomings go well beyond the question of weight, and go to the very basis upon which expert evidence is admissible. It involved no scientific analysis, measurements or research, but consists primarily of argument and speculation. Mr. Sdoutz did not visit the scene of the accident but relies on Google Maps. He did not measure anything, did not see the car, and cites no accident information, statistics or testing. The hallmarks of scientific analysis, Mr. Antifaev asserts, are missing. Moreover, argues Mr. Antifaev, the report is riddled with what must be considered at least confirmation bias, simply feeding back what ICBC requested in an email sent by an adjuster on June 9, 2017.
…

[18] I conclude that this evidence does not meet the Mohan criteria and should be excluded on that basis. But even if I were to conclude otherwise, I would consider it appropriate to exercise my discretion to exclude the report as part the gatekeeping function that I am obliged to exercise vigilantly (see, for instance, JP v British Columbia (Children and Family Development), 2017 BCCA 308 at paras 148-150).

[19] As Mr. Harris acknowledged, an expert can only deal with the data and information that is available. Here, as noted above, there was no data and little information available to Mr. Sdoutz. As a result, it was impossible to undertake the sort of forensic analysis one would expect in support an opinion of this nature. I am therefore asked to accept something of a much lower level of reliability, based upon an inadequate scientific foundation. That, in my view, renders it unsafe to admit the report. The potential benefit is low and the risk of prejudice high.

[20] I make no finding of bias on the part of Mr. Sdoutz, whose expert assistance I have found valuable in the past. I nevertheless agree with Mr. Antifaev that it is concerning that the report appears to have responded not to the initial retainer letter of January 2015, but rather to the inappropriate email of June 2017, and that its conclusions mirror the concerns raised in that email. This adds to the risk, but my conclusion does not turn on it.

[21] It follows that Mr. Sdoutz’s report must be excluded.

Motorcyclist Not At Fault for Crashing in "Agony of the Moment"

Written by admin on December 13, 2017. Posted in ICBC Liability (fault) Cases.

The legal principle of “agony of collision” sometimes also called “agony of the moment” gives wide latitude to a Plaintiff who is confronted with a sudden and unexpected hazard on the roadway due to someone else’s negligence. This principle was in action in reasons for judgement published today by the BC Supreme Court, Vancouver Registry.
In today’s case (Biggar v. Enns) the Plaintiff was operating a motorcycle and was riding in a staggered fashion behind the Defendant who was also operating a motorcycle. The Defendant rounded a curve and was out of sight of the plaintiff. During this time the Defendant took his eyes off the road and drifted into the oncoming lane of traffic. He crossed back over the centre line and re-entered his intended lane of travel roughly perpendicular to the proper direction of travel.
At this moment the plaintiff rounded the corner, saw the Defendant in his lane and braked hard losing control of his bike and crashing.
The Defendant argued the Plaintiff was partly at fault as a more prudent motorist could have avoided the hazard he posed. The Court disagreed and in doing so relied on the agony of collision principle finding the Defendant fully at fault. Madam Justice Sharma provided the following reasons:

[50] In my view, the phrase “agony of the moment” aptly describes the plaintiff’s situation. The plaintiff’s first reaction was to avoid colliding with the defendant, or an oncoming vehicle. Therefore, it was a reasonable course of action for him to brake hard which caused his bike to fall and slide. The defendant agreed that in order to avoid hitting him, the plaintiff had to brake hard, and that made the plaintiff’s bike fall.

[51] In my view the evidence is clear that the plaintiff was riding in a prudent and careful manner. There is no evidence that his speed was inappropriate for the conditions of the road or any other circumstance.

[52] As noted earlier, I do not accept the defendant’s argument that once he lost sight of the defendant in front of him, the plaintiff should have slowed down more than he did. Also, I have already concluded the plaintiff was driving at an appropriate rate of speed, and that he had already slowed down.

[53] Drivers are entitled to assume that other people will be driving in a prudent and safe manner. In Bern v. Jung, 2010 BCSC 730 the plaintiff lost control of a bicycle because of a sudden and unexpected presence of the defendant’s vehicle travelling in the wrong direction. The Court noted, at paras. 13-14, that the plaintiff was forced to act quickly and apply his brakes quickly and that he should not be found contributorily negligent for doing so.

[54] In this case the plaintiff was entitled to assume that his friend had negotiated the curve safely; coming upon the defendant situated in front of him and perpendicular to his line of traffic was unexpected and sudden. The plaintiff cannot be blamed for doing what I find to be the only reasonable thing he could do to avoid a more serious accident: applying his brakes hard. I conclude it was the defendant’s string of actions (looking to the canyon, and trying to get back in position instead of waiting on the shoulder) that caused the accident.

[55] For all those reasons, I find the defendant 100% liable for the accident.