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$120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases. 46 Comments on $120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.
In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011.  ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;

c)     Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.

 

Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

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

Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.
In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.
The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 

Liability Admission Overturned Late in Litigation

Written by admin on . Posted in BCSC Civil Rule 7. 118 Comments on Liability Admission Overturned Late in Litigation

When fault for a crash is admitted in a formal lawsuit the Court has discretion to allow withdrawal of the admission in appropriate circumstances.  Reasons for judgement were released today by the BC Court of Appeal documenting one such instance.
In today’s case (Sidhu v. Hothi) the Plaintiffs alleged they were involved in a collision caused by the Defendant.  They sued for damages and ICBC admitted fault on behalf of the defendant.  In the course of the lawsuit a witness was interviewed who provided a statement indicating the Plaintiffs may not have been in the vehicle at all.  ICBC sought to withdraw the admission of fault.  The plaintiffs opposed arguing it was too late to do so.  The BC Court of Appeal disagreed and in finding withdrawal was appropriate provided the following reasons:

[25]         Turning, then, to what I regard as the real issue in this case – whether the chambers judge erred in concluding that most of the Hamilton factors weighed in favour of the defendants – I would suggest it would be preferable to frame items 3‑8 of the Hamilton test not as conditions that must be met, but as factors that should be considered in determining what result is in the interests of justice. Thus I would reframe items 3‑8 as follows:

(a)      whether the admission was made inadvertently, hastily, or without knowledge of the facts;

(b)      whether the “fact” admitted was or was not within the knowledge of the party making the admission;

(c)      where the admission is one of fact, whether it is or may be untrue;

(d)      whether and to what extent the withdrawal of the admission would prejudice a party; and

(e)      whether there has been delay in the application to withdraw the admission and any reason offered for such delay.

I have omitted item 6 of the original list (that the fact admitted be one of mixed fact and law), since in most cases, including Hamilton itself, this has been held to be irrelevant provided a triable issue is raised (see alsoNesbitt (B.C.S.C.) at para. 56.)

[26]         The decision as to what is in the interests of justice involves a considerable degree of discretion, and as noted in Goundar v. Nguyen 2013 BCCA 251, this court should generally not interfere with such a decision unless the judge erred in principle. In my view, the chambers judge correctly weighed the “delay” factor against the fact that the admission was made without knowledge of the evidence; that the insurer’s failure to appreciate the significance of Mr. Hothi’s witness statement was a simple oversight; that witnesses to the accident are still available; and most importantly, that if the application were dismissed, the plaintiffs might be perpetrating a fraud on the defendants and on the court. In my opinion, this possibility is one that would be very difficult to countenance. Further, allowing the application will ensure that the plaintiffs’ claim will be heard on the merits – an overarching objective referred to in Rule 1-3 of the new Supreme Court Civil Rules.

[27]         For these reasons, I would dismiss the appeal.

Rheumatoid Arthritis Claim Rejected Following Low Velocity Collision

Written by admin on . Posted in Uncategorized. 56 Comments on Rheumatoid Arthritis Claim Rejected Following Low Velocity Collision

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the allegation that a collision caused a Plaintiff to suffer from rheumatoid arthritis.
In today’s case (Kabani v. Lee)  the Plaintiff was involved in a relatively modest collision in 2010.  The Defendant was responsible for the crash.  The Plaintiff argued that the collision caused her to develop rheumatoid arthritis, a “painful auto-immune disease that bilaterally attacks the joints in the human body“.  In rejecting this argument Mr. Justice Ball provided the following reasons:

[25]         In Hunt v. Ugre, 2012 BCSC 1704 at para. 121, Justice Dardi notes that the court must be cautious when inferring causation from a temporal sequence (i.e. from a consideration of pre-accident and post-accident condition). Dardi J. states:

In cases where causation is asserted primarily on a temporal relationship between the negligent conduct and [the] injury in question, the authorities mandate that a “close scrutiny of the evidence is required because the inference from a temporal sequence to a causal connection is not always reliable”.

[26]         The potential for a link between trauma and rheumatoid arthritis was canvassed in a medical discussion paper (mentioned above) entitled “Trauma and Inflammatory Arthritis” prepared by the Ontario Workplace Safety and Insurance Appeals Tribunal in September 2008 by Dr. Dafna D. Gladman, an acknowledged expert in rheumatology and internal medicine with a particular interest in inflammatory arthritis (filed as Exhibit 7 at trial). Dr. Gladman’s publications and teachings were referred to and relied upon by Dr. Yorke in his evidence. At page 2 of the paper, Dr. Gladman discusses the etiology and pathogenesis of the disease. Dr. Gladman notes at the outset that “[t]he cause of rheumatoid arthritis is unknown.”  At page 5, under the heading “Role of Trauma”, Dr. Gladman states “… a specific role for trauma in the development of rheumatoid arthritis has not been proven.”

[27]         Dr. Yorke presents a clear opinion against trauma being capable of causing rheumatoid arthritis. It is of some interest that his scientific opinion in this regard has changed over the years, evidenced by the expert opinion he rendered in Charbonneau v. ICBC, 1991 New Westminster Registry C890102 (B.C.S.C.), where Justice Mackinnon stated that Dr. York was “emphatic” that the plaintiff had rheumatoid arthritis and that it was precipitated by an accident.

[28]         The only medical evidence suggesting a link between the Accident and the onset of rheumatoid arthritis is Dr. Watterson’s opinion that the trauma from the Accident played a “possible role” in the development of rheumatoid arthritis. A “possible role”, when considered alongside the other medical evidence indicating that a link between trauma and rheumatoid arthritis has not been proven, does not satisfy me that the Accident caused or contributed to Ms. Kabani’s rheumatoid arthritis.

[29]         Regardless of any temporal link, there is simply no medical opinion upon which the Court can rely in this case to establish on a balance of probabilities the necessary causal link between the Accident and Ms. Kabani’s rheumatoid arthritis. The reports received by Dr. Witherspoon from Dr. Kelsall support the conclusion that the Accident did not cause Ms. Kabani’s rheumatoid arthritis.

$75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 58 Comments on $75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.
In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions.   The Defendants were found liable for each of these.  The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management.  In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:

[93]         Based on all of the above, I make the following findings on the balance of probabilities:

a.               Mr. Shinzay continues to suffer pain that affects, but does not disable him;

b.               Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;

c.               Mr. Shinzay needs to follow a conditioning program which will improve his pain management;

d.               Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;

e.               The accidents caused Mr. Shinzay to suffer soft tissue injuries; and

f.                The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.

…

[98]         As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.

[99]         Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..

[100]     In these circumstances, I find $75,000 to be an appropriate award.

Brain Injury Claim Dismissal Upheld Following Credibility Concerns

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

Reasons for judgement were released today (Minhas v. Sartor) by the BC Court of Appeal upholding a trial judgement which rejected a claim for an alleged “severe and permanent brain injury” following concerns about the Plaintiff’s credibility.
In upholding the trial judgement the BC Court of Appeal provided the following reasons demonstrating how the negative credibility finding impacted the injury claim:
[18]        In the main, the assumptions relied upon by the doctors in reaching their opinions derive from Mr. Minhas’s account of himself. However, the judge found that Mr. Minhas was dishonest, that his evidence was not to be believed, and that the history he provided to the doctors was inaccurate. She said:
[111]    I am satisfied that all of Mr. Minhas’s testimony – with the possible exception of statements against interest – must be regarded with scepticism and given little or no weight. I am also satisfied that to the extent any expert’s opinions are based in whole or in part on information provided to the expert by Mr. Minhas, the opinions of that expert must be carefully scrutinized and are likely to be unsupported.
[112]    I am reminded of the statement made by Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. 2690, as follows:
When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. (para. 2).
[19]        The judge’s conclusion of Mr. Minhas’s veracity and reliability, with respect, was not surprising given the many instances of dishonesty on his part evident in the record. That evidence includes different versions given by Mr. Minhas at different times as to his education, different versions advanced by him of his work history in Alberta, his routine filing of false tax returns with Revenue Canada, an account made by him to an insurance adjuster (in a previous motor vehicle accident) that he had been working when his tax return did not reflect any employment, his admission that he was prepared to threaten physical harm to get what he wanted, his filing a false claim (or claims) with Workers’ Compensation, his travel outside the country while claiming he was entitled to disability benefits, his testimony he received a generous dowry from his wife’s family in contradiction to his wife’s evidence that her family did not pay a dowry, his preparation of a false resume, and his provision of false employment references. This is only a partial listing of the inaccuracies and untruths that riddle Mr. Minhas’s account of his pre-accident life and his personal history.
[20]        Also germane to the assessment of the existence of brain injury is evidence that Mr. Minhas was not the easy-going person before the trial he and others testified he was. The pre-accident evidence demonstrates incidents in which Mr. Minhas was threatening or aggressive to others…
[24]        There is no real challenge taken to any of the judge’s descriptions of the evidence, although there is explanation proffered. But it was up to the judge whether to accept the explanation, and it is not up to us. As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that Mr. Minhas had suffered a brain injury, it is simply premature to analyze the theories of causation.
[25]        I see no basis upon which we may interfere with the judge’s conclusion that Mr. Minhas did not prove he had sustained a brain injury in, or caused by, the accident. I would dismiss the appeal.

$125,000 Non-Pecuniary Assessment for Fibromyalgia in ICBC Claim

Written by admin on . Posted in ICBC Fibromyalgia Cases.

Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry dealing with such an injury caused by a motor vehicle collision.
In today’s case (Hosseinzadeh v. Leung) the Plaintiff was involved in a 2009 collision caused by the Defendant.  She developed chronic pain/fibromyalgia as a consequence and her disabling symptoms persisted to the time of trial.  In assessing non-pecuniary damages at $125,000  Madam Justice Warren provided the following reasons:

[101]     Ms. Hosseinzadeh is a middle-aged woman; 43 years old when the accident occurred. The pain she has suffered has been significant, has persisted, has disabled her from most of her former activities, and is unlikely to improve. It has resulted in sleep impairment and has affected her mood. She faces many years of ongoing pain and compromised lifestyle.

[102]     The injuries have affected all areas of Ms. Hosseinzadeh’s life. Prior to the accident, she was able, with ease, to look after all of the cooking, housekeeping, laundry, and shopping for her family. She now depends on her husband and son to do much of this work and, although she can do some housekeeping, what used to take her a few hours each week is now a constant chore that she slowly works at throughout the day, taking frequent breaks. She has been deprived of her favorite activity — cooking meals for and entertaining large groups of friends. Her once vibrant social life of weekly parties, BBQs, and other events with friends has been significantly diminished.

[103]     While Ms. Hosseinzadeh continues to try to exercise regularly, she has had to modify what she does and sometimes she exercises in pain. She used to swim but now does mild exercises in the pool. She used to walk with friends easily but now has to take frequent breaks when she walks. At times her pain not only prevents her from exercising, it leaves her immobile for days at a time.

[104]     A formerly outgoing, sociable, and engaged woman, Ms. Hosseinzadeh is now more reclusive and has to depend heavily on her husband and her son. She must confront the reality that she has an incurable condition that has left her significantly impaired and, on bad days, almost completely incapacitated. All of this has had a significant adverse effect on her overall emotional well-being…

[107]     Awards of damages in other cases provide a guideline only. Ultimately, each case turns on its own facts. Having said that, I did find that the cases referred to by counsel for Ms. Hosseinzadeh to be helpful, particularly S.R. which was very similar in several factual respects. Taking all this into account, I find that an award of $125,000 for non-pecuniary damages is appropriate in this case.

Future Income Loss Awards Immune From Creditors via Bankruptcy Protection

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Reasons for judgement were released today by the BC  Supreme Court, Victoria Registry, addressing whether a Plaintiff’s funds for ‘future income loss’ in a personal injury lawsuit, where the Plaintiff has made an assignment into bankruptcy, are ‘property’ that creditors can access.  In short the answer was no.
In today’s case (Kuta (Re)) the Plaintiff was injured in a 2008 collision.  In 2010 the Plaintiff made an assignment into bankruptcy.  Following his discharge he settled his personal injury claim which included $248,000 for ‘future wage loss’.    Appriximatley $200,000 would have satisfied all of the claims of the Plaintiff’s creditors.  The Court was asked whether the creditors can go after these funds.  In finding they were immune Master Bouck provided the following reasons:

[16]         Central to the court’s analysis in Bell (Re) is the characterization of future income loss as the loss or impairment of property, being the capacity to earn income. The court declined to adopt the contrary analysis made by the Ontario Court of Justice in Lang v. McKenna, 1994 CarswellOnt 295 (Ct. J. (Gen. Div.)). In Lang, the court found that monies paid to an individual while he is incapacitated from earning a living for himself and his family do not form part of the bankrupt’s estate.

[17]         Bell (Re) has been followed in at least two other reported cases: Mostajo (Re), 2006 CarswellOnt 6421 (S.C.J.), and MacLeod (Re), 2008 CanLII 32835 (Ont. S.C.J. (Bank. & Ins. Div.)).

[18]         In contrast, the court’s characterization of a future income loss as found in Lang has been followed in Re Anderson, 2004 ABQB 349, Conforti (Re), 2012 ONSC 199, and Re Snow, (ONSC, unreported). In Gurniak v. Royal Bank of Canada, 2011 CarswellSask 507 (Q.B.), the court found it “debatable” as to whether a future income loss award falls within s. 68 but declined to include any such award in the bankrupt’s estate: para. 49.

[19]         In Conforti (Re), the court addresses whether an award for “loss of competitive advantage” is the property or income of a bankrupt. While the semantics differ, the loss which the court was asked to characterize is “distinct but related to” a future income loss award: para. 36. In a most thorough analysis of both the case law to date as well as the statutory provisions which apply, the court decided that:

a. the concept of a capital loss as discussed in Andrews should not be imported into the bankruptcy context. This is particularly so given the subsequent Supreme Court of Canada ruling in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (following Marzetti v. Marzetti, [1994] 2 S.C.R. 765, a decision regarding the application of s. 68 but one which is not mentioned in Bell (Re)). Wallace determined that s. 68 applies to an award for damages for wrongful dismissal. The Court found that a broad and purposive approach is necessary when determining whether a particular receipt is income for the purposes of s. 68: Conforti (Re) at paras. 12-13. Thus, the broadest definition of income ought to be made by the court before any monies received by the bankrupt are deemed to fall within s. 67;

b. In any event, “it is abundantly clear” on a reading of Andrews that the description by the Court of the “capitalized loss” was intended to avoid income tax consequences on the award at that time. That does not mean that “capital” loss translates to “property” under s. 67 in the bankruptcy context: para. 20; and

c. the essential nature of the monies paid for the future loss of income must be considered. The monies are intended to compensate an individual for lost income due to a reduced capacity to earn that income, or to replace income that will never be made as a result of the tortious act. As such, the monies are “akin to income” and fall within the definition of s. 68(2) (a) of the Act: paras. 25-28. As Wallace decided, a damages award that is “filling the pocket that would otherwise have been filled by salary or wages” is not property available to a bankrupt’s creditors: Wallace, para. 69. See also Julyan (Re), 2009 SKQB 321 (Registrar) where workers’ compensation income loss replacement monies were found to fall within s. 68.

[20]         The bankrupt further submits that the analysis and conclusions in Bell (Re) have been overtaken by developments of the law in British Columbia on the characterization of a future income loss in the personal injury context. Specifically, the Court of Appeal has determined that a future loss of income award is not necessarily determined on a loss of capital asset approach. That same loss can be assessed on the “real or substantial possibility” that a future event will occur leading to loss of income: Perren v. Lalari, [2010] B.C.J. No. 455 (C.A.) at para. 7. Thus, the bankrupt submits, the importation of the “capital asset” concept from personal injury law into the bankruptcy context is no longer valid even if Bell (Re) was correctly decided at the time.

[21]         Furthermore, the objectives of the Act itself, being to balance the rights of the creditors and the integrity of the bankruptcy system with the bankrupt’s entitlement to make a fresh start in the financial world, must be considered. It is submitted that the Settlement monies for future income loss is not a financial windfall such as an inheritance. Rather, the monies represent the means of putting an individual back in the financial place that he would have been had the tortious act not occurred. It is submitted that a manifestly unjust result would occur if the bankrupt was compelled to pay current creditors with monies intended to compensate the bankrupt for future circumstances: see Lang at paras. 41-42.

[22]         In summary, the bankrupt says that the capital asset cases ought not to be followed, given developments in the law since Bell (Re). And further, that Marzetti, a case not cited in Bell (Re), is the guiding and binding judicial authority. As such, a lump sum future income loss payment must be “income” under s. 68 as the monies are intended to replace an individual’s lost income stream. By their very nature, these monies can never be considered property under s. 67 of the Act.

[23]         The preceding summary does not do justice to the complete submissions of the bankrupt. It does provide some basis for my decision to go against Bell (Re). In my respectful view, Conforti (Re) accurately reflects the proper approach to be taken by the court when asked to characterize “income” (or “property”, for that matter) under the Act. I also reiterate that Conforti (Re) references and follows Marzetti, a case which does not appear to have been considered in Bell (Re) despite the relevancy of the case to the question before the court.

[24]         In the result, I find that the monies which are intended to compensate Mr. Kuta for future loss of income do not vest in the trustee under s. 67 of the Act.

"The Use of an Interpreter, on its Own, Is Irrelevant to the Issue of Credibility"

Written by admin on . Posted in Civil Procedure. 49 Comments on "The Use of an Interpreter, on its Own, Is Irrelevant to the Issue of Credibility"

Reasons for judgment were released today by the BC Supreme Court addressing whether a witness who has a good understanding of English should have their credibility negatively assessed where they choose to testify trough an interpreter.  In short, the Court held that this factor alone is irrelevant in assessing credibility.
In today’s case (Kim v. Khaw) the Plaintiff was injured in a vehicle collision that the Defendant was responsible for.  The Plaintiff sued for damages and testified using a translator.   The Plaintiff had a good understanding of English and as a result the Defendant argued the Plaintiff’s credibility should be negatively impacted by using the buffer provided by a translator.   Madam Justice Sharma disagreed and in doing so provided the following reasons:

[100]     Mr. Kim’s comprehension of English was good; therefore, does his decision to use an interpreter impact his credibility?

[101]     There is no doubt that hearing evidence through the filter of an interpreter can be challenging: Wang v. Hu, 2003 BCSC 552 at para. 24; R. v. A.F., 2010 ONSC 5824 at para. 87. The court must be alive to the fact that the impact or nuance of interpreted testimony may be “lost in translation”, especially during cross-examination. For example, inconsistencies in explanations or expressions may be the inevitable result of there being no exact translation, or perhaps many translations, for an English word, phrase or concept in the foreign language.

[102]     It is unfortunate, but inescapable, that hearing evidence through an interpreter may make it more difficult to consider and weigh that evidence. Difficulty, however, cannot be a bar to fairness; fairness is the measure against which the court must gauge whether the fact that evidence was given via an interpreter is relevant to or affects the credibility of that witness’ testimony.

[103]     Mr. Kim felt more comfortable testifying in Korean. A major issue in this case is whether his mental status has been detrimentally affected by the Accident. This required him to discuss and reveal highly personal and emotional information, including his intimate relationship with his wife and his interactions with his children. He testified about matters that all doctors accepted he felt enormous shame and guilt about. I find it reasonable and understandable that he would choose to testify in his native language even if he does understand English well. This is especially true because he is not just a witness, but a party, in the case.

[104]     The comfort of one’s native language, even when English is understood, is surely a factor for many witnesses who testify via an interpreter. That comfort would be seriously eroded if, without reasonable justification, a court were to take into account a witness’ preference for interpretation when weighing their evidence or assessing their credibility. It is my view that the use of an interpreter, on its own, is irrelevant to the issue of credibility. To find otherwise could unfairly prejudice participants in the trial process who used interpreters and could undermine public confidence in the trial process. In my view, there must be some evidence, or a reasonable inference that can be drawn from evidence, that the witness’ use of the interpreter was not necessary for them to fairly participate in the trial, but rather was a deliberate intent to gain some advantage: Mee Hoi Bros. Co. v. Borving Investments (Canada) Ltd., 2014 BCSC 1710 at para. 13 and 21 [Borving].

[105]     In this case, Mr. Kim demonstrated that he does understand spoken and written English, and that he speaks English (although, from the very little I heard, with a heavy accent and somewhat haltingly). I understood the defendants to rely on Mr. Kim’s facility with English as another reason the court should not rely on his testimony. I find that to be irrelevant to the weight I attach to his evidence. In this case, the defendants’ counsel was able to conduct a vigorous and effective cross-examination of the plaintiff despite the interpretation.

[106]     I do not discount the possibility that counsel may want to argue that the use of an interpreter, where one was not absolutely necessary, caused the trial to be longer which should be recognized in a costs award, but that issue is entirely different from credibility.

Bus Driver Partly Liable For Passenger Injury After Stopping Too Far From The Curb

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

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, finding a bus driver partly liable for injuries after a passenger fell while disembarking the bus.
In the recent case (Isaacs v. Coast Mounatain Bus Company Ltd) the Plaintiff fell while getting off the bus.  At the time the bus stopped some 12-14 inches from the sidewalk contrary to their policy of stopping closer to the curb.   The Plaintiff attempted to jump to the curb resulting in injury.  The Court found both parties equally to blame for the incident.  In holding the Defendant 50% liable Madam Justice Watchuk provided the following reasons:

[47]         If the distance of the front door of the bus from the curb was greater than ten inches, there is potential negligence on the defendants.  As stated above, Translink has in place guidelines for a standard bus stop that state that buses should be stopped parallel to the curb and within six to ten inches of that curb.  However, the defendants’ negligence is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented themselves at the time of this specific accident (Heyman v. South Coast British Columbia Transportation Authority (c.o.b. Translink), 2013 BCSC 1724 at para. 68). 

[48]         Although the defendants’ policy directive is not determinative, in light of these specific circumstances I find that the policy of stopping less than ten inches away from the curb reflects the standard of care required by a reasonably prudent bus driver.  Thus, if the distance between the front door and the curb was greater than ten inches, there would be a prima facie case of negligence and it would be for the defendants to establish that the plaintiff’s injuries occurred without negligence on their part or due to a cause for which the defendants were not responsible. 

[49]         Ms. Isaacs’ evidence is that the bus came to a stop at an angle with the front of the bus further from the curb than the back of the bus.  Her evidence was that the distance from the bottom step to the curb was 12-14 inches.  In cross-examination she disagreed with the statement that the distance was only six inches from the curb, and responded, “Oh no – it was wider, quite wide”.  This is consistent with her evidence that when she was on the sidewalk after the fall, Ms. Isaacs observed that the rear of the bus was closer to the sidewalk than the front. 

[50]         I accept Ms. Isaacs’ evidence in this regard.  I have noted that her memory of the number of steps at the front of the bus is incorrect, as she recalled one step at the front when there are three steps on this type of bus.  However, other than this point, her evidence with regard to the location of the bus when it was stopped is persuasive and is consistent with the other details of the scene at the time of her fall. 

[51]         The evidence of Mr. Payne is, I find, evidence of his usual good practice with regard to stopping the bus with the front and rear exits at an equal distance, and six inches from the bottom of the steps to the curb.  However, his evidence with regard to this stop is internally inconsistent.  He testified that he drives the bus straight in the curb lane.  He also testified that he angles the wheel to the left prior to the stop so that he is ready to pull out into traffic when the bus leaves the stop.  On the evidence of this stop of this bus prior to this incident, I find that Mr. Payne angled the steering wheel to the left prior to the bus coming to a complete stop.  Thus the front of the bus and the front door were further from the curb than the back of the bus and the back door. 

[52]         I accept Ms. Isaacs’ evidence that the bottom step of the front door exit was 12-14 inches from the curb, and therefore greater than ten inches from the curb.  I accept her evidence that the distance is the reason that she jumped from the bottom step to the curb rather than going down the bottom step to the pavement, crossing and stepping up on the curb to the sidewalk. 

[53]         That the bus was parked further than ten inches from the curb is contrary to the defendants’ internal policy.  In these circumstances it was a breach of the defendants’ standard of care owed to the plaintiff. 

[54]         A further breach of the defendant Mr. Payne is that, having stopped the bus further than ten inches from the curb, he did not warn Ms. Isaacs of the potential hazard being the excess distance.  Although he considered a warning as he observed her moving quickly, he decided not to startle her.  Given his observations, when he saw Ms. Isaacs exiting without use of the railing at more than 10 inches from the curb he should have provided a warning.