Skip to main content

Tag: bc injury law

Defendant Fails "To Recognize The 'Capital Asset” Approach"; Ordered To Pay Double Costs

Update August 5, 2015 – The below damages for Diminished Earning Capacity were overturned by the Court of Appeal and a new trial was ordered on the issue.
_____________________________________
Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, ordering a Defendant to pay double costs for refusing to accept a bested pre-trial formal settlement offer.  In reaching this result the Court was critical in the Defendant’s failure to appreciate the ‘capital asset’ approach in assessing diminished earning capacity awards.
In this week’s case (Ostrikoff v. Oliveira) the Plaintiff was injured in a 2009 collision.  Prior to trial the parties exchanged a variety of formal settlement offers with the Plaintiff’s last offer coming in at $325,000 and the Defendant’s last offer being $100,000.  The matter proceeded to trial where damages of over $550,000 were assessed.  The Plaintiff was awarded post offer double costs and in finding the Defendant should have accepted the Plaintiff’s offer the Court provided the following comments:
[11]         The plaintiff, on the other hand, marshalled a combination of both expert and lay evidence.  The essence of the plaintiff’s case was that the plaintiff was involved in unique and highly skilled work which had a significant physical component and that the plaintiff’s chronic pain and physical impairments threatened both his business and his sole means of livelihood.  The uncontradicted expert evidence was that the plaintiff was not a suitable candidate for retraining. 
[12]         All of this was known to the defendant well before the trial began.  Expert reports had been delivered from orthopaedic surgeons, treating physicians, a functional capacity evaluator, a vocational consultant, a cost of care consultant, and an economist (regarding future loss multipliers).  No rebuttal reports were prepared by the defendants and much of the evidence was uncontradicted at trial.
[13]         Plaintiff’s counsel provided the defendant with a detailed rationale for the quantum of the first settlement offer in the amount of $325,000 made on March 8, 2013.  The nature and structure of the claim became obvious at that point, if it had not already been obvious beforehand.  Service of the plaintiff’s expert reports would have alerted the defendant to the possibility of a very significant claim being presented and possibly succeeding at trial. 
[14]         The only submission made by the defendant in defence of its refusal to accept the plaintiff’s settlement offer is that there was an absence of any “documented pecuniary loss” and of any expert or other reliable evidence supporting any pecuniary loss, whether past or future.  The submission, and indeed the defence’s entire approach to both the case and the settlement offer, fails to recognize the “capital asset” approach to assessment of damages for both past and future earning capacity in circumstances where the financial loss is not easily measurable. 
[15]         In my opinion, the February 17, 2014 settlement offer made by the plaintiff was reasonable and one that ought reasonably to have been accepted by the defendant before the commencement of trial.  A careful assessment of the strength of the plaintiff’s case on the eve of trial, having regard to the expert reports and the proposed lay testimony, as well as the principles of damages assessment in chronic pain cases involving potentially significant loss of capacity would have, and should have, resulted in a conclusion that a recovery at trial of sums in excess of the offer was a realistic prospect.  Instead, relying almost exclusively on tactics limited to cross-examination and putting the plaintiff to strict proof of his case, the defendant chose to proceed to trial to see what might happen.  Defendants are free to litigate the case in such fashion as they consider appropriate.  But as stated in Hartshorne, above, “[l]itigants are to be reminded that costs rules are in place to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer”.
[16]         For these reasons, I exercise my discretion to award party and party costs to the plaintiff under Scale B up to February 17, 2014, and double that scale for all steps taken in the proceeding thereafter.
 

Costs Threats Against Expert Witnesses An Abuse of Process

In the first case I have seen addressing this issue, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, striking out language in correspondence between lawyers as an abuse of process.
In today’s case (Walker v. Doe) the Plaintiff objected via letter sent to Defence counsel to the admissibility of Defense expert reports, and as part of the “boilerplate” objections Plaintiff’s counsel noted that “we shall seek sanctions personally against [expert’s name], including but not limited to special costs“.
In finding that the Rules of Court allow a Judge to strike out language in such a letter Mr. Justice Butler reasoned as follows:
[7]             Letters sent by counsel to provide notice of objection to the admissibility of an expert report are required to be served pursuant to R. 11-6(10). The notice must set out “any objection to the admissibility of the expert’s evidence that the party receiving the report … intends to raise at trial.” The notice required by the Rule is a document mandated by the Rules in which a party must set out their position for trial.
[8]             Rule 9-5(1) is not limited to pleadings but also applies to petitions and “other documents”. Document is defined in R. 1-1(1) in broad terms. There is no doubt the notice required under R. 11-6(10) is a document pursuant to that definition. However, the word must be interpreted ejusdem generis in the context of the phrase, “pleading, petition or other document”. Applying that aid to interpretation, I conclude that “other document” refers to documents which are required by the Rules to formally set out a party’s position, claim or defence. The notice under R. 11-6 (10) is such a document.
In finding the costs threat amounted to an abuse of process the Court provided the following reasons:
[15]         In conclusion, expert witnesses play an important role in the litigation process. When an expert is properly qualified within an area of expertise and the expert’s opinion evidence, which is not otherwise excluded, meets the essential criteria of relevance and necessity in assisting the trier of fact, it can be admitted to assist the court: R. v. Mohan, [1994] 2 S.C.R. 9. The Rules establish a process which provides adequate notice of expert opinions and sets up a way to challenge admissibility. There is no need to introduce into the process, by way of boilerplate language in notices under R. 11-6(10), threats of claims against experts for special costs. As I have already noted, it is entirely unnecessary. Further, it has the potential to frustrate the litigation process because it may discourage the participation of expert witnesses. In addition, and contrary to the intent of the new Rules, it would seem to place the expert in an adversarial position.
 

Why You Shouldn't "Steal" and Burn Your Own Car

It should go without saying that stealing and burning your own vehicle with a view to making an insurance claim is not a good idea.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a vehicle theft/fire claim.  In last week’s case (Singh v. ICBC ) the Plaintiff purchased a 2007 E-350 Mercedes.  On October 24, 2009 the vehicle was found some 15 minutes from the Plaintiff’s home and “had just been ignited with fire” with flames “shooting ten to twenty feet in the air.”  The luxury vehicle was rendered a total loss.
The Plaintiff made a claim to ICBC to recover damages for loss of the vehicle but they were suspicious of the circumstances and denied the claim.  The Plaintiff sued for damages seeking over $94,000 in replacement cost coverage.
In denying the claim the Court found that the Plaintiff “made a key set available to someone so the Mercedes could be driven to the scene of the fire” and further that the Plaintiff conspired in the destruction of the vehicle with Madam Justice Hyslop finding that “he knew in advance what would happen to the Mercedes“.
In dismissing the claim the Court provided the following reasons:
[122]     Constable Gibo stated that Mr. Singh was not surprised or did not express shock that the Mercedes was on fire, nor did he ask for any details as to the event. He did not care. I find that is because he knew in advance what would happen to the Mercedes.
[123]     I do not accept that the Mercedes was stolen. Mr. Singh’s evidence was that when he purchased the Mercedes he received two sets of keys to operate it. He claims that he mislaid one set of keys, but was very clear that the keys were not lost or stolen. He refused to say when one set of keys was mislaid.
[124]     Expert evidence is before the court that categorically states that Mr. Singh’s Mercedes could not be driven without the keys. The opinion of Mr. Seroogy is that in order to produce a new key, it requires the proper equipment and people with extensive training and experience “in multiple electronic disciplines”. Mr. Seroogy said that the process is delicate and time consuming and could not have been performed within the timeframe between when the Mercedes was last seen and the time when it was found burning. I accept this evidence.
[125]     Mr. Crowe found that there was damage to the right side of the Mercedes. I find that this was intended to cover up the fact that the Mercedes was driven to the site of the fire with a key.
[126]     I find that the Mercedes was driven to the scene of the fire using the keys. The Mercedes was then set on fire.
[127]     The fact that it is unknown who participated in the theft and the destruction of the Mercedes by fire, is of no consequence.
[128]     In his testimony, Mr. Singh completely resiles from his pleadings in which he alleges theft. Mr. Singh repeatedly testified that he was not claiming the Mercedes was stolen, but rather that it was burned. Nothing in his pleadings mentions that the Mercedes was burned.
[129]     In his Claim File Report (by telephone), Mr. Singh claimed that the Mercedes was stolen. No mention was made of it being burned. In his statement of November 4, 2009, he refers to the fire. In his Proof of Loss, he swears that the cause of his loss was by “burned”. However, whether it was stolen or not, it could not be at the location of the fire without being driven there with the use of one of the sets of keys issued to Mr. Singh when he purchased the Mercedes.
In addition to dismissing the claim the Court ordered that the Plaintiff pay the Defendant’s costs which I would ballpark at $20,000 – $30,000.  So, the end result is no vehicle, no insurance payout and a significant debt to ICBC.
 

Excessive Delay Strips Defendant of Double Costs Entitlement

In what I believe is the first case addressing this factor, reasons for judgment were released today by the BC Supreme Court, Kelowna Registry, looking to the timeliness of  a costs application as a factor in deciding costs consequences following a trial with a formal settlement offer in place.
In this week’s case (Bay v. Pasieka) the Plaintiff was involved in a collision and sued the Defendant for damages.  The case had “frailties” and prior to trial the Defendant made a nominal formal settlement offer of $1.  The Plaintiff rejected this offer and proceeded to trial.  A jury dismissed the claim.  The Defendant sought double costs and Mr. Justice Butler would have awarded these but did not due to excessive delay in bringing the Defendant’s application.  In reaching this conclusion the Court provided the following reasons:
 [1]             On January 27, 2010, following a two-day trial, the action of the plaintiff, Laurie-Ann Bay, against the defendant, Todd Pasieka, was dismissed. I ordered that the issue of costs be adjourned with liberty to the parties to apply to the court if an agreement could not be reached. Three-and-a-half years after the trial, the defendant now applies for costs. The defendant seeks costs at Scale B and double costs from November 14, 2006, the date an offer to settle was made, to the present. The plaintiff says that each party should bear their own costs…
[30]         While some delay is understandable, the delay in this case far exceeded a reasonable limit. Excessive delay is, of course, contrary to the object of the Rules as set out in Rule 1-3(1): to secure “the just, speedy, and inexpensive determination of every proceeding on its merits.” By waiting so long to deal with the issue of costs, the defendant undoubtedly increased the cost of dealing with the issue for both parties and delayed the final resolution by years. It would be wrong to accept the delay without imposing any consequence on the defendant. It is in the interests of the court and of the parties to resolve disputes as soon as they arise to promote efficient use of court time. The inordinate delay in bringing this application is not acceptable.
[31]         In Xerox, Finch J. found that a party alleging prejudice has the evidentiary burden of showing that prejudice. While the evidence presented does not establish significant prejudice, the plaintiff has established that the defendant’s delay in pursuing a costs award caused her and her counsel difficulty in responding to the application in as fulsome a manner as she would have been able to had the defendant sought costs soon after trial. Similarly, it is much more difficult for the court to consider the costs claim so long after the trial has concluded.
[32]         I find that the defendant has not provided a suitable reason for the inordinate delay in bringing this application. The plaintiff has been prejudiced as a result of this delay and the court has been inconvenienced.
[33]         Without the delay in the application, I would have found that the defendant was entitled to double costs from the date of Mr. Pasieka’s examination for discovery. The plaintiff should have known from that time forward her claim was weak and should have accepted the offer. However, given the inordinate delay, I decline to make that order. Instead, I order that the defendant is entitled to costs at Scale B throughout.
 

Another Example of the Unintended Consequences of Personal Injury Trials

When an injury claim proceeds to trial the case becomes one of public record.  The public nature of the proceedings can lead to unintended consequences such as creating a papertrail for Revenue Canada to go after undeclared past earnings.
Another unintended consequence of the open trial process was highlighted in reasons for judgement released this month by the BC Supreme Court, New Westminster Registry.  In the recent case the Plaintiff was injured in a 2007 collision.  He missed some time from work initially but returned to work in 2008 and had “been performing the work duties assigned to him” since that time.   The Plaintiff sought damages for diminished earning capacity and in support of this claim tendered medical evidence speaking to his physical limitations.  When his employer learned of this the Plaintiff was suspended (in this case temporarily) from his employment.  The reasons for judgement highlight this consequence as follows:
[122]     The evidence at trial was clear that the plaintiff has been performing the work duties assigned to him since his return to work in 2008.  However, on the first business day following completion of the trial, the plaintiff was suspended from his duties, without pay, apparently because the City of New Westminster had concerns about the plaintiff’s fitness for duty as a firefighter on the basis of its understanding of the evidence the plaintiff led at trial.  By letter dated June 24, 2013, Chief Armstrong informed the plaintiff as follows:
At the trial and in speaking to legal counsel for yourself and ICBC I learned several things that caused me concern.  First, apparently considerable medical evidence has been tendered at the trial as evidence of your inability to perform the full range of duties required by your position.  Second, you are apparently seeking the recovery of considerable damages as a result of the accident and prior to being subpoenaed, we were not aware that these proceedings had been instituted by you.
…This is to advise that you are being held out of service without pay until you are able to prove to us that you are in fact fit for duty.  We are formally requesting you provide copies of all medical evidence tendered as exhibits at your trial so that we may assess your fitness for duty as expeditiously as possible.
 

A Balanced Costs Award Following Jury Trial

In an illustration that not all trial ‘losses’ trigger catastrophic costs consequences, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering balanced costs consequences.
In this week’s case (Desharnais v. Parkhurst) the Plaintiff was involved in two vehicle collisions.   Prior to trial the Defendants provided two formal offers, the first at $50,000 the second at $75,000.  The Plaintiff, who was seeking in excess of $1 million rejected both offers and proeeded to trial.  Following a thirteen day jury trial the Plaintiff’s damages were ultimately assessed at $30,100.
Both parties had medical evidence to justify their respective positions, however, the Court noted, some of the opinions of the Plaintiff’s experts were “highly suspect”.
The Defendants sought substantial costs having bested their formal settlement offers. The Court noted a more appropriate result would be to award the Plaintiff costs up to the date of the second formal offer and to have the parties bear their own costs thereafter.  While such an order still has significant financial consequences for the Plaintiff it is far less sever than ordering payment of the Defendant’s costs. In reaching this decision Mr.Justice Saunders provided the following reasons:
[42]         On the whole, I do not consider either the First or the Second Offer as having reflected, objectively speaking, a genuine attempt at compromise. I find them to hae been more reflective of what the Applicants could reasonably have hoped to achieve if all or substantially all of the issues were resolved in their favour. I am not dissuaded from taking this view by the fact that the jury awarded even a lesser amount; I do not think it is unfair to counsel or to the jury for me to say that the jury’s decision was considerably less than what reasonably prudent counsel would have regarded as a “win” for the defence. I cannot find that either offer ought reasonably to have been accepted by the plaintiff.
[43]         As Goepel J. stated in Ward, that is the beginning, not the end of the analysis. The most basic principle underpinning the Rules relating to costs is that costs of a proceeding are to be awarded to the successful party (R. 14-1(9)). This expectation is intended to promote sensible conduct throughout court proceeding; it exists notwithstanding the broad judicial discretion to depart from the principle, which is generously built into the Rules.
[44]         In this case, the jury found that the plaintiff had successfully proven some damage. But for the offers to settle, he would be entitled to his costs. Having regard to the factors set out in Rule 9-1(6), including giving some weight to the plaintiff’s financial circumstances, I do not find that the offers were so substantial that the Applicants ought to be entitled to any indemnification against their own costs. The plaintiff’s position was not completely lacking in merit. It was not frivolous. However, the fact that the settlement offers exceeded the judgment amount cannot be ignored. The Applicants were forced to incur the expense of a trial which they were willing to avoid by paying the plaintiff a not insubstantial sum, a sum which ended up being considerably greater than the damages the plaintiff was judged to be entitled to. It would be unfair to require the Applicants to indemnify the plaintiff for the costs of advancing a claim that was ultimately judged to be greatly overvalued.
[45]         I find that the plaintiff is entitled to his costs up to the date of delivery of the Second Offer. The parties will bear their own costs thereafter.
 
 

Supplementary Expert Reports Bound By Document Disclosure Duties

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of document disclosure when dealing with supplementary reports.  In short the Court held the same duties apply to supplemental reports as to ‘original’ reports, namely to identify the documents relied on by the expert in forming their opinion.
In this week’s case (Amini v. Khania) the Defendant’s expert authored a supplemental report without listing all the documents relied on.  The Defendant argued the Rules for listing all documents relied on in expert reports do not apply to supplemental reports.  Mr. Justice Burnyeat disagreed and in doing so provided the following reasons:
 [18]         The submission of counsel for the Defendants is that it is not necessary in a supplementary report to include a list of every document relied upon by the expert providing a supplementary opinion.  I am satisfied that the failure of Dr. Dommisse to list the documents that he relied upon is not “cured” by the provisions of Rule 11-6(7).  While it is clear that supplementary reports have a narrow scope and purpose and are only intended to set out where and how a previous opinion has changed in a material way, there is nothing in Rule 11‑6(7) which would allow me to conclude that the filing of a supplementary report can circumvent the clear and mandatory requirements of Rule 11‑6(1)…
[21]         The very purpose of Rule 11‑6 is that all expert reports should be tendered in a way that neither side can be ambushed or surprised at trial…
[23]         A supplementary expert report remains an expert report.  It must comply with the rules set out in Rule 11‑6(1).  Otherwise, the supplementary opinion would be based on unknown facts and assumptions.  It would be impossible to give the necessary weight to a supplementary expert opinion as it would be impossible to compare the facts upon which that opinion was based with the findings of fact ultimately made by the Court.  The provision of a supplementary report which does not comply with Rule 11‑6(1) should not be used to circumvent the requirement that no party will be caught by surprise by an expert report.
 

Motorist "Darting Out Into Traffic" Fully At Fault for Subsequent Collision

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing the liability of a motorist who darts into traffic causing a cyclist to lose control.
In this week’s case (Graham v. Carson) the Defendant motorist was stopped at a commercial loading zone and the “darted out into traffic too quickly” when it was unsafe to do so.   The Plaintiff, who was travelling in the same direction, lost control trying to avoid a collision with the Defendant and subsequently drove his bicycle into a parked car causing injury to himself.  The Defendant argued the Plaintiff was the author of his own misfortune.  Mr. Justice Macintosh rejected this argument finding the Plaintiff acted reasonably in the agony of collision and that the Defendant was fully to blame.  In reaching this conclusion the Court provided the following reasons:
[8]             Having found as I have regarding the turn signal, I add that the failure to signal is not the central concern in this case.  If Ms. Carson had signalled at about the same moment she pulled out and drove into the traffic, the signal would have been of little or no assistance to anyone.  The main problem was that Ms. Carson’s car darted out into traffic too quickly.  The traffic was proceeding south on Blanshard immediately behind or beside her car when her car had been stopped in the commercial zone moments before that.  She should have waited for a safe opening in the traffic, which might have entailed waiting where she was until the light changed so as to stop the southerly flow on Blanshard before cars started south onto Blanshard from Fort Street…
[11]         Proceeding through the green light southward on Blanshard were, first, the SUV, second, the plaintiff on his bicycle, and third, Mr. Enns in his car.  The SUV, the plaintiff’s bicycle and the Enns car were thrown into disarray by the defendant driver pulling out too suddenly, immediately in front of the SUV.
[12]         I noted above that the SUV stopped before hitting the defendant’s car, but avoiding that collision was a near thing.  The SUV had to stop very quickly.  Mr. Enns veered his car toward the left; that is, toward the centremost of the southbound lanes on Blanshard, in order to avoid a collision.  Meanwhile, the plaintiff on his bike had a matter of seconds to decide what to do.  He was conscious from past experience that he risked being rear‑ended by the Enns vehicle if he stayed his course and simply braked, hoping to stop in time to avoid hitting the SUV.  Instead, he steered his bike, to the right, into what appeared as a metre‑wide opening between the stopped SUV and a car parked on Blanshard, just south of the commercial zone.
[13]         As I noted above, Mr. Graham is an experienced cyclist, and hoping to avoid injury by driving into the space between the SUV and the parked car was not unreasonable in that dire circumstance, when there was no time and little opportunity to do anything else.
[14]         Unfortunately, that escape route did not save the plaintiff.  His elbow hit the mirror of the parked car, breaking off the mirror.  That impact drove him from his bike and injured him, thus giving rise to this claim…
[16]         My view of the evidence and my resulting findings of fact lead to my conclusion that the defendant driver is fully liable for the plaintiff’s injuries.  The plaintiff was not contributorily negligent.  He acted promptly and not unreasonably in a desperate situation, which was brought about entirely by Ms. Carson’s re‑entering traffic when her car should have stayed where it was until there was a safe opportunity to proceed.

Motorist Fully At Fault Despite Being hit While Stationary

Reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, finding a motorist who was struck while stationary fully at fault for a collision.
In last week’s case (Hart v. Jackson) the Defendant lost control of his vehicle in winter driving conditions and drove into a snow bank.  A good Samaritan helped him retrieve his vehicle leaving it facing southbound in the northbound lane.  The Defendant’s vehicle’s wheel wells were packed with snow such that it could not be steered.  The Defendant spend several minutes using a ice scraper to remove the snow.  At the same time the Plaintiff vehicle was driving Northbound.  When he realized the Defendant vehicle was in his lane he applied his brakes but could not avoid the collision.
In finding the Defendant fully at fault for the crash Mr. Justice McKinnon provided the following reasons:
[15]         In my view, Mr. Jacobsen was not a credible witness. He argued with plaintiff’s counsel, dismissed the plaintiff’s expert opinion about the Kia’s woeful lack of winter readiness, and generally set himself up as an expert northern driver fully alert and ready for winter conditions.
[16]         It was somewhat telling that even the defendant’s expert engineer was critical of the defendant’s position that “all weather tires” were perfectly adequate for northern winter driving.
[17]         The defendant testified that he drove at a constant speed of 75 KPH, which clearly was too fast, given the state of his vehicle, particularly the condition of his tires. Before the collision at issue in this case, the defendant’s vehicle began to slide as it rounded the curve referred to earlier and it ended up in the snow bank off the northbound lane. A passing motorist stopped to assist and pulled him out, leaving the Kia facing southbound in the northbound lane. According to Mr. Jacobsen he was “at most a foot away from the snow bank”.
[18]         Unfortunately, the wheel wells were packed with snow and thus the Kia could not be steered. The defendant had no shovel and so was reduced to chipping away at the wheel wells with a snow scraper to free up the steering. Although his vehicle was equipped with four way flashers he did not turn these on but did have his head lights on.
[19]         He said that as he was close to completing this task, he heard a flashing or skipping noise, turned to his left and saw a silver pickup sliding toward him. He said he turned and leaped into the ditch, never taking any strides.
[20]         Mr. Jacobsen denied ever admitting to either Mr. Landolt or Mr. Hart that the collision was his fault, indeed he capped that denial by asserting that “I was parked, it wasn’t my fault”. As stated earlier in this judgment, I did not find Mr. Jacobsen to be a credible witness. I found that the plaintiff and Mr. Landolt were credible and prefer their evidence over that of the defendant Jacobsen…
[35]         Mr. Jacobsen had his Kia parked in the northbound lane facing southbound. It is not entirely clear just how much of the Kia was in the northbound lane but it was to a substantial degree such that a northbound driver like Mr. Hart could conclude he was facing an immediate hazard.
[36]         The defendant was not just momentarily parked in this hazardous position but remained there for some 15 minutes, all the while scraping away at the wheel wells with a tool not designed for such work. Thus we have a vehicle, substantially in the northbound lane with a pedestrian walking around it posing an additional hazard to northbound traffic. The Kia’s head lights were on but the hazard lights were not. Given the curve and hump, the true nature of the hazard would not be readily apparent to the driver of a northbound vehicle until he rounded the curve and was so close to the parked vehicle that a collision was inevitable…
[41]         The two experts both agree that Mr. Jacobsen ought not to have been driving on “all season” tires which they testified were completely inappropriate for northern driving.
[42]         In my view, Mr. Hart was faced with the “agony of collision” doctrine. Given the curve and hump that obscured any clear view of just where the Kia was, he could not appreciate just what hazard was facing him. By the time he was able to see that the Kia was in fact parked substantially in his northbound lane there was almost no time to react. He cannot be faulted for opting to brake as opposed to some other manoeuvre: see Soto v. Peel, 2013 BCSC 409; Ayers v. Singh (1997), 85 B.C.A.C. 307, 69 A.C.W.S. (3d) 207; and Brook v. Tod Estate, 2012 BCSC 1947.
[43]         I also accept that Mr. Jacobsen had a duty to warn oncoming motorists of the hazard he had created by at least operating his four way flashers. The better course would have been to flag the curve with emergency reflectors but he had no such equipment: see Skinner v. Fu, 2010 BCCA 321.
 

$90,000 Non Pecuniary Assessment for Suprascapular Nerve Injury

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a suprascapular nerve injury caused by a collision.

In this week’s case (Donovan v. Parker) the Plaintiff was involved in a 2009 crash.  The Defendant admitted fault.  The collision caused a nerve injury in the Plaintiff’s shoulder which resulted “in permanent damage to the infraspinatus and supraspinatus muscles of his left rotator cuff“.   In assessing non-pecuniary damages at $90,000 Mr. Justice Baird provided the following reasons:
[40]         The plaintiff is a 39 year old man who has been reduced in his physical abilities because of his injuries. His previous activities such as skiing, camping, hiking, diving, swimming, rock-climbing and water-skiing have been much circumscribed. He has been negatively affected in his ability to engage in physical activities with his children, and he has become less useful around the home that he shares with his wife and family. His mood has been affected by persistent pain. He has been noted to be short-tempered with his wife, children, co-workers and friends. The medical evidence seems clearly to establish that his injuries are permanent and that he will have to be diligent in pursuing a course of exercise and physiotherapy to maintain his present functioning.
[41]         Of the cases relied on by the defendant under this heading of damages I find Langley v. Hepner, 2011 BCSC 179, Jurczak v. Mauro, 2013 BCSC 658, Durand v. Bolt, 2007 BCSC 480 and Cimino v. Kwit,2009 BCSC 912 to be roughly analogous to the present case. The plaintiff relied on Stapley v. Hejslet, 2006 BCCA 34, Power v. White, 2010 BCSC 1084, Dycke v. Nanaimo Paving and Seal Coating Ltd. and Foster, 2007 BCSC 455, Morlan v. Barrett, 2012 BCCA 66, all of which could legitimately be argued to be analogues with the case at bar.
[42]         Based on these authorities, I conclude that an appropriate range for non-pecuniary damages in this case is between $55,000.00 and $140,000.00. Relying especially on Cimino and Stapley, which I consider to be most similar to the present case, I think a fair, just and reasonable award would be $90,000.00.