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School Found Liable After Child Sneaks Onto Roof and Falls

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


(Update December 1, 2014 – the BC Court of Appeal upheld the below decision in reason released today)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding a school liable after a child was severely injured following a fall from the school roof.
In today’s case (Paquette v. School District No. 36) the 12 year old plaintiff was playing on school grounds after hours.  There was a tree in close proximity to the school.  He climbed the tree onto the roof of the school with a friend.  The vice principal heard them and yelled for them to get down.  Trying to go unidentified they attempted to climb down via a different route.   The Plaintiff “hung down from the edge of the roof, presumably placed his feet on the top of the wire fence, and safely jumped to the ground. Unfortunately Owen lost his grip on the roof. He slipped and then fell all the way onto a cement surface at the bottom of the stairwell, a total distance of about 20 or 21 feet.”
The Plaintiff sued for damages.  The School was found 75% at fault for having the tree in such close proximity to the school that kids could climb it.  In reaching this conclusion Madam Justice Sharma provided the following reasons:
[35]         First, most of the time the defendant knew people had been on the school roof, the defendant did not know how they got there. The lack of evidence about people having previously used the cherry tree to access the roof is, therefore, unsurprising. On one occasion the defendant did know that someone climbed a tree close to the school to access the roof. As Mr. Hurd rightfully conceded, a tree close to the school will tempt kids to climb it and get onto the roof. I conclude it was foreseeable that trees close to the school might be used to access the roof. It is simple common sense that if a child can get onto a roof, it is reasonably foreseeable that the child might fall off that roof and get badly injured.
[36]         Second, there was no evidence of “regular monitoring” of potential access points to the school roof. If there was at any time either a schedule of routine inspection or an assessment of trees proximate to the school that could potentially provide access to the roof, I would have expected that to be put into evidence as it would have clearly been material to this case.
[37]         Instead, the evidence demonstrates that if the defendant took any action in response to knowing youth had been on the roof, it was only reactive and ad hoc. This was despite the fact that there were numerous possible access points to the roof, as depicted in Mr. Delavalle’s photographs.
[38]         Mr. Hurd’s evidence establishes that this school had a problem with youth getting onto its roof. The numerous incidents he recalls confirm that this problem was known to the principal, teachers, maintenance workers, students and their families and others. Despite this, there is no evidence that the defendant required anyone to turn their mind to whether any trees were growing too close to the school roof and providing the access that allowed for this problem to persist.
[39]         In making these findings, I am mindful that the defendant is not expected to be perfect and that it would be impossible to completely prevent anyone getting on the school roof other than in an authorized fashion. However, taking into account all the circumstances of this case, it was unreasonable that the defendant allowed the cherry tree to grow so close to the school’s roof.
[40]         The defendant also argues it should not be held liable because most, if not all, other instances of people being on the roof occurred on the weekend and probably involved teenagers. The problem with that submission is the issue in this case is not about when the roof was accessed. Rather, the issue is whether the defendant’s actions in relation to possible roof access points were reasonable. The school is a permanent structure and its grounds are open to the public. When the roof was accessed is immaterial to the determination of whether the defendant acted reasonably in allowing the cherry tree to grow so close to the roof.
[41]         The same reasoning can be applied to the defendant’s argument that it was likely only older, non-students who had been on the roof previously. I note the evidence about the age of the people on the roof on weekends was obviously speculative, except for the two instances Mr. Hurd witnessed. It would be imprudent to place significant weight on this point when the evidence is not conclusive. But even if it was proven that all prior incidents involved teenagers, I do not find that that fact would support a conclusion that this accident was not foreseeable. If there are numerous instances of teenagers being on the roof, the elementary school students would know about it. This inference is confirmed by Mr. Hurd’s evidence that he received reports from his students about people on the roof during weekends. It is common sense that if students know that older youth have been on the roof, they may be tempted to do the same. More than one witness agreed that tree climbing is a normal part of childhood.
[42]         Mr. Hurd testified he was surprised that was how the boys got on the roof because he thought the tree was flimsy. As noted above, I have found the cherry tree had a study branch close to the roof. More importantly, in my view a reasonable person understands that a child might try climbing any tree close to the roof, flimsy or not. Owen was a 12 year old boy. Children act impulsively, with little forethought about the consequences of their actions and with limited insight. Put more simply, reasonable people foresee that children can and often do stupid things that are dangerous even when they know they shouldn’t.
[43]         I am not suggesting that the inherent nature of childhood means an occupier is liable for anything that a child might do. As always, each case must be assessed in context, reviewing all the circumstances.
[44]         Given the circumstances at this particular school, a reasonable person would foresee that the cherry tree (or any other tree in similar proximity to the school roof) might be used by kids to climb onto the roof. As such, the defendant is liable for not taking reasonable actions to prevent children accessing the school roof via the cherry tree.

Trial Re-Opened to Prove Prior Inconsistent Statement

Written by admin on . Posted in Civil Procedure, Uncategorized.

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, discussing the discretion to reopen a case prior to judgement to call new evidence.
In the recent case (Kostecki v. Li) the Plaintiff was injured in a collision and sued for damages.  In the course of the trial she was cross examined about statements attributed to her in a consultation letter from a treating neurologist which “can be seen as inconsistent with Ms. Grace’s evidence of the seriousness of the accident and of the persistence and seriousness of her ongoing symptoms.”
The Plaintiff did not adopt the statements contained in the letter.  After the close of the case the trial judge noted the limitation of such cross examination absent proof the statement was made.  The Defendant brought an application to re-open the case and call the doctor to prove the statement.  In allowing this request Mr. Justice Schultes provided the following reasons:
[18]         No judgment has been pronounced and only the plaintiff has made submissions. The cases demonstrate that the discretion is exercised much more readily prior to judgment.
[19]         The failure to call this witness originally was due to a simple mistake by counsel in failing to grasp the evidentiary value of Dr. Beckman’s report standing alone, if the plaintiff failed to adopt its relevant portions. The purpose of reopening would only be to remedy that error and to put the defendant in the position that he would have been in if it had not been made. It confers no additional benefit beyond this corrective purpose. It represents proof of statements with which the plaintiff has been confronted, and the only potential additional evidence will be any explanation by Dr. Beckman of his process of recording patient histories and any aspects of that process that might allow him to vouch for the accuracy of the statements he has recorded in his letter.
[20]         In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen:  Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.
[21]         In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.
[22]         Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.

"Exaggerated" Injury Claim Dismissed by BC Supreme Court

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

Update March 10, 2015 – The below decision was overturned by the BC Court of Appeal which found that the trial judge made “palpable and overriding error” in the assessment of the evidence.  A new trial was ordered.
_______________________________________
Credibility plays a vital role when advancing a claim with subjective injuries.  Negative credibility findings can undermine such a claim as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pacheco v. Antunovich) the Plaintiff was involved in “a very minor” rear end collision in 2012.  The Court found that the Defendant was “travelling at a speed of no more than two kilometers per hour at the time of the collision“.   The Plaintiff alleged injury and sought over $100,000 in damages at trial.  The Court rejected the entirety of the claim and ordered the Plaintiff to pay the Defendant’s costs.  In reaching this decision the Court was critical of the Plaintiff’s credibility and provided the following reasons:
[10]         The credibility of the plaintiff is very important in a case like this where the foundation for most of the plaintiff’s complaints is subjective. Therefore, it is prudent for me to deal with the issue of credibility.
[11]         The plaintiff was cross-examined on her medical records for the period before the collision. It is clear from those records that the plaintiff attended her doctor on a very regular basis in the months and years preceding the collision. Although the plaintiff testified that she was active in sports before the collision, her medical records seem to indicate that she visited her doctor in relation to ongoing pain and repercussions she claimed she was still suffering from her previous injuries. In fact, one of these visits in which she complained of this type of pain occurred about a month before the collision.
[12]         Another result of the cross-examination of the plaintiff on her medical records was the fact that she previously complained of weight gain and hair loss in September 2010. This is exactly one of the claims she alleges in this action as a result of the collision.
[13]         Further, throughout the trial and at five or ten minute intervals, the plaintiff would stand up from her seat and continuously stretch so that I could “see” the pain she experiences when she sits in one position for a period of time…
[19]         I did not find the plaintiff to be a very credible witness at trial. Her testimony was not reasonable within the circumstances of the very minor “fender bender” in this case. I find that she had a strong penchant for gross exaggeration and, as such, I do not accept her evidence…
25]         I find that the plaintiff has failed to prove on a balance of probabilities that she suffered any injury as a result of the collision. The plaintiff’s action is therefore dismissed with costs.

Wide Left Turn Leads to Contributory Negligence Finding

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

(Update March 25, 2015 – an appeal from the below liability finding was dismissed)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing fault for a crash involving a wide left hand turning vehicle.
In this week’s case (Le v. Point) the Plaintiff was operating a scooter and passed a vehicle which was stopped ahead of him waiting to turn left.  The Plaintiff passed on the right hand side of the vehicle.  At the same time the Defendant, coming from the opposite direction, was attempting a left hand turn through the intersection.  The Defendant almost cleared the intersection when the Plaintiff clipped the rear of the vehicle.
The Court found the Defendant was established in the intersection and was the dominant vehicle with the Plaintiff failing to keep a proper lookout.  Despite this the Defenant was found partially at fault because she was turning wide into the curb lane.
In finding the Defendant 30% at fault Madam Justice Russell provided the following reasons:
[51]         I find that Mr. Le did not keep a proper lookout as he entered the intersection. If he had, he would have seen Ms. Dickson’s vehicle conducting a left turn. By the time he entered the intersection, Ms. Dickson’s vehicle was in the northeast corner of the intersection, which was directly in front of his line of vision.
[52]         However, Ms. Dickson has admitted that she violated s. 165 of the Motor Vehicle Act by turning wide into the northbound curb lane of traffic on Arbutus rather than the lane of traffic closest to the centre line. While this in itself is not sufficient to establish that she breached her duty of care, if she had turned into the nearest northbound lane as required, it is likely she would have been clear of the intersection by the time that Mr. Le entered it and the collision may never have occurred. On this basis, I find Ms. Dickson was contributorily negligent in causing the collision despite the fact that she was the dominant driver.
[53]         In closing arguments the plaintiff referred to several cases in which a left turning driver was held 100% liable for collisions: Andrews v. Mainster, 2012 BCSC 823, Clarke v. Stephan, 1993 CanLii 1554 (B.C.S.C.), Djukiv v. Hahn, 2006 BCSC 154, Tait v. Dumansky, 2012 BCSC 332, Pasemko v. Van Varner, 1994 CanLii 1043 (B.C.S.C.). These cases are not of assistance to the Court in deciding the issues at hand. In all of these cases it was found that the left turning driver failed to observe traffic which constituted an immediate hazard and breached an obligation to yield the right-of-way. Since I have found that Mr. Le was not an immediate hazard and Ms. Dickson was the dominant driver, these cases are distinguishable on their facts.
[54]         In the circumstances of this case, I apportion the fault for the 2010 Collision as 70% to Mr. Le and 30% to Ms. Dickson.

$130,000 Non-Pecuniary Assessment For Chronic Pain With Related Heart Palpitations

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases. 39 Comments on $130,000 Non-Pecuniary Assessment For Chronic Pain With Related Heart Palpitations

It what is a fairly unusual symptom following motor vehicle related injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with associated heart palpitations.  In this week’s case (Morena v. Dhillon) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a variety of injuries which remained symptomatic at the time of trial and were expected to linger into the future, the most unusual of which were heart palpitations.  In assessing non-pecuniary damages at $130,000 Madam Justice Arnold-Bailey provided the following reasons:
[117]     The evidence establishes that she was injured in the accident and as a result developed of the following injuries and conditions as listed by to Dr. Koo:
1.         Soft tissue injuries to the neck, shoulders, arms, lower back and legs with chronic residual sequelae of:
a)         Chronic whiplash injury with mechanical neck pain, myofascial origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus muscles.
b)         Mechanical low back pain.
2.         Chronic sleep disruption.
3.         Posttraumatic stress disorder.
4.         Severe depression.
5.         Heart palpitations.
[130]     In the present case, prior to the accident, the plaintiff was a vital, energetic 43-year-old wife and mother of two. The extent of her injuries and the ensuing conditions is clearly set out above. She is likely to continue to suffer from pain, depression, PTSD, sleep disruption and potentially heart palpitations in to the future. Her depression is severe and seems to be entrenched. Her pain is severe at times and she requires constant pain medication. Her emotional suffering is great due to her great sadness and regret that she is not able to make the contributions to her family life that she did prior to the accident. Her relationships with family and friends have been negatively affected although her family remains intact. The best evidence is that she is fully disabled from work except for the one hour a day as a lunch supervisor she currently performs during the school year. She remains partially disabled from housework and other physical activities. Her enjoyment of all aspects of her life is significantly reduced. She is prevented by the injuries and their aftermath from living what otherwise was likely to have been a very happy, productive and fulfilling life. She has lost much.
[131]     Considering the range of awards in the authorities provided on behalf of the plaintiff, I find the decisions of Marois and Morlan to be of the most assistance. I award non-pecuniary damages in this case in the amount of $130,000.

No Legal Duty of Care Between "Ski Buddies"

Written by admin on . Posted in Uncategorized. 53 Comments on No Legal Duty of Care Between "Ski Buddies"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a novel claim; whether ‘ski buddies’ owe each other a legal duty of care.
This week’s case (Kennedy v. Coe) involved a heli-skiing expedition.  The Plaintiff’s husband and the Defendant never met before.  The skiers were to ski in a buddy system for certain runs and the two were paired up for this purpose.
During a run which did not require buddy supervision the Plaintiff’s husband had a fatal accident.  The Defendant did not notice at the time but when he realized the Plaintiff’s husband was absent he alerted the group and a search was undertaken.  The Plaintiff sued for damages arguing that had the Defendant paid better attention the search could have been undertaken sooner and possibly saved her husband’s life.
Madam Justice Fischer dismissed the claim finding the Defendant acted reasonably in the circumstances and even if he did not there was no legal duty of care in these circumstances.  In reaching this conclusions the Court provided the following reasons:
[99]         There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence I have reviewed. For the reasons I have outlined, I conclude that none of the three factors in Childs support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish aprima facie duty of care. A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The “more” may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances, which would be subject to an analysis of the contrary policy considerations at stage two of the Annstest…
[121]     The plaintiff’s claim is dismissed. It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe.
 

BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

Written by admin on . Posted in Civil Procedure. 54 Comments on BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.
In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm.  While on disability leave she was involved in a collision.  She sued for damages alleging the collision related injuries prevented her from returning to work.
The Plaintiff was represented by a lawyer from the firm that she worked at.  In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“.   The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis.  Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial.  The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:
[21]         The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.
[22]         After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.
[23]          In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows:
…The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.
[24]         There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.
[25]         I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.
[26]         The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.
[27]         I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.

"Mild" Concussion Leads to $5.9 Million Judgement

Written by admin on . Posted in ICBC Brain Injury Cases. 99 Comments on "Mild" Concussion Leads to $5.9 Million Judgement

I can put it no better myself than the beginning of the judgement which reads “Occasionally a seemingly innocuous event can have tragic consequences“.  This passage is taken from reasons for judgement released today by the BC Supreme Court, Vancouver Registry, dealing with such consequences after a seemingly minor collision.
In today’s case (Wallman v. John Doe) the Plaintiff was involved in a rear end collision in 2006.    It was by all accounts a modest collision however it caused a concussive injury.   The Plaintiff went on to suffer from profound post concussive symptoms.  He was a doctor and these symptoms disabled him from his own profession.  Due to this lost income earning ability the assessed damages were high.  In assessing non-pecuniary damages at $200,000 Mr. Justice Weatherill provided the following reasons:
[465]     Dr. Smith opined that post-concussion syndrome is not a valid medical diagnosis.  Drs. Teal and Prout opined that it is not only a valid, but also a generally recognized diagnosis.  I accept the opinions of Drs. Teal and Prout and reject those of Dr. Smith.
[466]     In my view the plaintiff has established beyond the balance of probabilities that the dramatic and sudden onset of symptoms of headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression and anxiety and problems with vision, concentration, multi-tasking and speech and communication, are the result of him having suffered a MTBI (concussion) caused by the Accident.
[467]     Moreover, I find that the plaintiff continues to suffer from post-concussion syndrome as a direct result of his Accident-related concussion…
[470]     Prior to the Accident, the plaintiff was a confident, decisive, energetic individual with an excellent memory and a penchant for detail.  He was able to identify a problem facing him, define the options available for resolving the problem and choose from among them.  He loved challenge and loathed routine. He felt he could accomplish anything he wanted to.   He was the hardest-working emergency room physician at WHCC.  He loved and was passionate about his work.  He thrived on the stimulation and the trauma of the emergency room.  He was happy with his life and enjoyed helping others.
[471]     At the time of the Accident, the plaintiff was at the height of his medical career.  He had a very good reputation as an emergency room physician and was well respected in the Whistler community.  His reputation was important to him and he was proud of his accomplishments.  He had no plans to retire.
[472]     There is no question that the plaintiff’s life has changed profoundly as a result of the Accident.  His ability to function in everyday life has been significantly impaired.  He has considerable cognitive challenges that will likely affect him for the rest of his life.  He has lost his overall confidence.  He struggles to make decisions and initiate activities.  He is inattentive and displays poor judgment.  He has withdrawn socially.  His thresholds for mental and physical activities are limited to approximately 2 hours and 30 minutes, respectively, beyond which he becomes symptomatic.  He is no longer able to practice as an emergency room physician, a job he was passionate about and proud of.  His ability to interact with and enjoy his children has been impaired.  The medical experts are of the opinion that his recovery has likely plateaued.
[473]     As a result of the Accident, the plaintiff’s ability to work in the job he loved has been taken from him.  He has lost his sense of purpose in life.  He no longer feels that he is a contributing and productive member of society. The realization that he will be unable to return to his profession and that his life as it was prior to the Accident is gone has been devastating to him.
[474]     He wanted to engrain in his children the values of hard work and reputation in the community.  It is devastating to him that he cannot show his children that he works hard.
[475]     He has difficulty identifying problems facing him and defining his options.  He cannot seem to understand the problem and make a decision.  He does not trust his own judgment either medically or as it relates to his real estate investments.  He has trouble making day-to-day life decisions.  Although the plaintiff realizes that he must learn to allow others to help him, he has a great deal of difficulty accepting that fate…
[484]     Having considered the principles set out in Stapley, the ordeal that the plaintiff has gone through, the impact the Accident has had on the plaintiff’s life including the loss of a vibrant medical career that was very important to him, as well as  the cases relied upon by counsel, I find that an award of $200,000 for non-pecuniary damages is appropriate.

Criminal Conviction Strips Defendant of Civil Liability Denial

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Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, confirming that it is an abuse of process to deny liability in a civil lawsuit for damages following a criminal conviction related to the same incident.
In today’s case (McCaffery v. Arguello) the parties were involved in a road rage incidence during which the Defendant “proceeded to intervene in the fight between Mr. McCaffery and Mr. Segundo by repeatedly striking Mr. Mccaffery with the baseball bat, causing him serious but non-life-threatening injuries to his head and wrist.”
The Defendant was criminally convicted of assault with a weapon and assault causing bodily harm.  The Plaintiff sued for damages and the Defendant denied liability.  In summarily finding the Defendant civilly liable Mr. Justice Sewell provided the following reasons:
[33]         Mr. Arguello’s counsel submits that as provocation may affect the quantum of damages It will still be necessary to hear viva voce evidence about the circumstances leading up to the assault at the assessment. That may be so. But the evidence will have no bearing on liability. I am also of the view that evidence restricted to the limited issue of provocation will not materially lengthen or complicate the assessment process.
[34]         I am also satisfied that I should grant judgment on liability notwithstanding the fact that this amounts to a severance of the issues of liability and assessment. Rule 9-7(2) permits a party to apply for judgment on an issue or generally. In my view this is an appropriate case to dispose of liability before assessing damages. Mr. Arguello clearly has no defence on the issue of liability. There is no reason to require him to re-litigate that issue.
[35]         Finally, I conclude that there is no merit in the argument that judgment cannot be granted in the absence of the defendant Mr. Segundo. I was not referred to any authority for the proposition that the plaintiff is not permitted to pursue judgment against one defendant in an assault case. If Mr. Arguello wishes to pursue a claim against Mr. Segundo for contribution, he is at liberty to do so. However I see no reason why that possibility should delay the plaintiff’s claim against him.
[36]         Accordingly I find that the plaintiff is entitled to judgment finding the defendant liable for his injuries, with damages to be assessed.

Examination For Discovery Continuations When Cases Removed From Fast Track

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Typically the BC Supreme Court rules allow examinations for discovery to last  up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours.  What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision.  She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests.  The matter then was removed from the fast track and a further discovery was sought.  The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons:
[20]         The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.
[21]         The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.
[22]         Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.