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Bus Driver Liable for Collision After Failing to Stop for Running Passanger

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


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a bus and a pedestrian attempting to catch it before it departed.
In last week’s case (Heyman v. South Cost British Columbia Transportation Authority) the Plaintiff was attempting to catch a bus which was stopped at a bus stop.   He ran towards it, approaching from its front, waving his hand in the air trying to get the motorists attention.  The bus driver closed the doors and put the vehicle into motion just as the Plaintiff approached colliding with his waving hand.   The impact caused him to spin around and fall to the ground. His ankle was run over by the rear of the bus and he also suffered a broken shoulder.
The bus driver argued there was a strict policy “that if a pedestrian is even one foot away from the bus stop when the doors close, the bus leaves“.  Mr. Justice Skolrood rejected this finding there was no such written policy noting that the written policy stated that “to arrive safely is more important than to arrive on time. The obvious safety of passengers, employees, travelers and pedestrians on the streets and highways must be given precedence over every other consideration.”
Mr. Justice Skolrood went on to note that in any event the bus driver was careless in departing when he did given the proximity of the pedestrian.  In finding both parties negligent in the incident the Court provided the following reasons:
[66]         The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman’s approach.
[67]         In my view, reliance on this alleged policy is no answer to the claim that Mr. Cooper breached the standard of care. I say alleged policy because it is not set out anywhere in writing, notwithstanding that West Vancouver Transit has in place an extensive policy manual setting out detailed operational practices and policies. That said, I have no reason to question Mr. Cooper’s evidence that drivers are instructed to leave once there is no one else waiting at a bus stop.
[68]         However, Mr. Cooper’s conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in Wang, the question is whether there was a real risk of harm that could reasonably be avoided.
[69]         In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver’s attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper’s part. Again, that is particularly so given the manner in which Mr. Heyman was approaching…
[84]         In the circumstances, I find that Mr. Heyman was 60% responsible for the accident and Mr. Cooper 40%.

Pedestrian 70% at Fault For Jaywalking Collision

Written by admin on . Posted in ICBC Liability (fault) Cases. 49 Comments on Pedestrian 7049 at Fault For Jaywalking Collision

Adding to this site’s archived claims involving pedestrian collisions, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for an incident involving a pedestrian who was crossing a street outside of a crosswalk.
In this week’s case (Khodadoost v. Wittamper) the Plaintiff pedestrian started crossing McKay Avenue in Burnaby, BC two car lengths north of the intersection.  The defendant motorist was stopped in the curb southbound lane.  As the pedestrian stepped in front of the vehicle the Defendant started to drive forward as his light had turned green.

In finding the pedestrian 70% at fault for the incident Mr. Justice Betton provided the following reasons:
[13]         The incident occurred while the plaintiff was crossing McKay Avenue at Kingsway Avenue, in Burnaby, British Columbia. He had obtained a ride from a friend, Ms. Khaki-Khaljan, to the area. She pulled off to the right of the northbound lane of McKay Avenue approximately two car lengths north of Kingsway Avenue. When the plaintiff exited the vehicle, he began crossing McKay Avenue west and outside of the crosswalk but moving at an angle toward the crosswalk…
[18]         When the southbound traffic began to move forward, the defendant followed. The plaintiff at that time was adjacent to the front driver’s side corner of the defendant’s car. The defendant’s vehicle may have made a very slight contact with the plaintiff before the defendant initially applied his brakes. When he placed his foot on the brake pedal, however, his foot slid off the pedal allowing his vehicle to move forward, essentially in a second forward motion. At that time, there was contact between the plaintiff and the defendant’s vehicle, and the plaintiff fell or was knocked to the road…
[64]         There is no question that the plaintiff began his crossing of McKay Avenue outside of the crosswalk. That fact is, however, of limited relevance. What is particularly important is the condition of the pedestrian and traffic control signals, and the plaintiff’s positioning relative to the crosswalk as he moved past the center point of the road and across the southbound lanes.
[65]         I am satisfied on the evidence that by the time the plaintiff had begun to cross those southbound lanes, the traffic signal for southbound traffic was green. All of the evidence indicates that traffic generally, including the defendant, had begun to move. Neither the plaintiff nor the defendant commented specifically on the condition of the traffic signal, but it is the only logical inference from the evidence as a whole…
[77]         It is my conclusion that the plaintiff must bear the majority of the liability for the incident. I apportion liability 70 percent to the plaintiff and 30 percent to the defendant. An award of damages must be adjusted based on this division of liability.
 

Lack of Business Records Negativley Impacts Diminished Earning Capacity Claim

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When a self employed individual fails t properly account their business income and expenses this can create difficulties in advancing a claim for diminished earning capacity.  Reasons for judgemetne were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.
In this week’s case (Musgrove v. Elliot) the Plaintiff was involved in two collisions.   The Defendants admitted liability.  THe Plaintiff sustained vaiours injuries which were still symptomatic at the time of trial.  He was self employed as a builder of residential decks and fences.  The Plaintiff’s injuries negatively affected him at work such that he had to rely more heavily on subcontractors and labourers to do work he otherwise would have done himself.  The Court accepted this, however, awarded only a fraction of the damages the plaintiff was seeking for these losses based on the Plaintiff’s lack of corroborating records.  In doing so Mr. Justice  Johnston provided the following reasons:
[56]         In late 2007 Mr. Musgrove moved to the Victoria area and began to establish himself in his own business as a fence and deck builder. He had perhaps 10 months to build that business before the first of his two accidents, and in that time he kept lamentably few records of his earnings or expenses.
[57]         There is thus little reliable evidence of what Mr. Musgrove actually earned before the first accident, and evidence of actual earnings is usually the most reliable basis on which to assess damages for income losses claimed as a result of an accident.
[58]         Mr. Musgrove’s poor record keeping habits continued after the accidents, leaving little upon which to base a confident assessment of what he has earned since the first accident, or what he has paid out to others to do work he says he could and should have been able to do himself but for his injuries…
[72]         I am satisfied that as a result of the injuries he suffered in the accidents, Mr. Musgrove had to hire others to do work that he would have done himself had he not been injured. This represents a loss to Mr. Musgrove for which he should be compensated.
[73]         Mr. Musgrove must accept responsibility for the consequences of his poor or non-existent records. One such consequence may be an award lower than it might have been had he kept proper records. In all of the circumstances, I assess Mr. Musgrove’s loss of earning capacity at $20,000 from the time of the accident to trial.

Cyclist Fully at Fault For Collission Following Careless Lane Change; No Adverse Inference From Defendant Failing to Tesitfy

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Interesting reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff’s claim following a bicycle/vehicle collision.
In last week’s case (Miles v. Kumar) the Plaintiff was cycling Eastbound along Grandview Highway in Vancouver when he moved from the right into the left lane in preparation for a left turn at an upcoming intersection.  The Defendant was travelling in this lane and a collision occurred shortly after the lane change.  Mr. Justice Bernard found the plaintiff fully at fault an in doing so reached the following conclusions:
[62]         In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.
[63]         In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).
Interestingly the Defendant never testified at trial despite fault being disputed.   The Court was asked to draw an adverse inference but Mr. Justice Bernard refused to do so. The Court provided the following comments on this issue:
[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.
[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.
[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged. In support they cite McIlvenna v. Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in McIlvenna stated:
[70]      The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in Halsbury’s Laws of Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure, and Evidence headings, respectively, as follows:
It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.
…
There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party’s failure to call a witness whose testimony would be expected to assist the party’s case.
[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.
[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.

Knocking Down The House of Cards – Break the Facts, Break the Opinion

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When opinion evidence is introduced into court the factual underpinnings which the opinion is based on must be proven otherwise the opinion evidence is of no value.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court.
In the recent case (Paller v. Regan) the Plaintiff was injured in a 2009 collision.  ICBC admitted the defendant was at fault but disputed the collision caused any injuries.  In support of their position they relied on an orthopaedic surgeon who never examined the Plaintiff but provided an opinion that it was “unlikely” the Plaintiff’s injuries were caused by the crash.  In support of this conclusion the doctor assumed this was a low speed impact.  Madam Justice Fenlon rejected this evidence finding that the foundation of the opinion was not proven.  In dismissing the surgeon’s evidence the Court provided the following reasons:
[25]         The only medical opinion evidence tendered by the defence is a report of Dr. Dommisse, an orthopedic surgeon. He did not examine Mr. Paller, but reviewed medical records, imaging, and the reports of Drs. Whittington and Chu. Dr. Dommisse opined that it is unlikely that the accident caused a disc tear or herniation. He stated in his written report:
As outlined above, I have not had the benefit of examining Mr. Paller. I am therefore unable to fully comment on Dr. Chu’s report. In my opinion, however, it is unlikely that Mr. Paller suffered a disc tear and/or disc protrusion at L4/5 in a motor vehicle accident of this magnitude.
In my clinical experience, I have seen approximately four lumbar disc herniations as a result of motor vehicle accidents. These accidents were higher velocity collisions, two of which occurred when the driver drove head on into a house.
[26]         Dr. Dommisse assumed that the speed of Mr. Regan’s vehicle was 5 km/h, a number provided by Mr. Regan in a statement given to ICBC shortly after the accident. In cross-examination Mr. Regan was unable to be precise about his speed. He agreed that he was accelerating on to the street, that his speed was moderate, and that he did not brake before the collision.
[27]         I conclude that the opinions of Dr. Chu and Dr. Whittington are to be preferred to that of Dr. Dommisse. As he acknowledged, Dr. Dommisse’s opinion was restricted by lack of an examination of the plaintiff. Further, it was largely anecdotal and was based on a fact, the speed of Mr. Regan’s vehicle at 5 km/h, that was not proved at trial.
[28]         Dr. Jung is a psychologist who has treated Mr. Paller on two occasions. He provided an opinion that Mr. Paller is suffering from Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical Manual of Mental Disorders. Dr. Jung is of the opinion that the anxiety developed as a result of a reaction to chronic injury and pain. I accept his opinion.
[29]         In summary on this issue, I find that Mr. Paller’s injuries, physical and psychological, were caused by the accident on February 24, 2009.

Vehicle Lessor Liability Limit Over and Above That of Motorist

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UPDATE – November 7, 2014 – the below decision was overturned in reasons released this week by the BC Court of Appeal
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Important reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessor’s when their vehicles are involved in an at-fault collision.
Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor’s to $1,000,000 of liability when their vehicles are involved in a collision.  The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.
In this week’s case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision.  The quantum was agreed to at $1.6 million dollars.  The ICBC insured defendant paid out the policy limits of $1 million.    The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million.  Mr. Justice Bowden disagreed finding a lessor’s exposure, while capped at $1 million, is over and above damages collected from other liable parties. In reaching this conclusion the Court provided the following reasons:
[34]         As a lessor, under s. 86(1.2), Honda Canada is vicariously liable as a joint tortfeasor. Without the limitation in s. 82.1, it would be liable, together with the lessee, for all or part of the damages of $1,600,000. However, section s. 82.1 places a $1,000,000 limit on that liability such that Honda Canada’s portion cannot be greater than $1,000,000.
[35]         In my view, the payment of $1,000,000 on behalf of the lessee does not reduce the liability of Honda Canada to zero. It is simply a payment by one joint tortfeasor towards the total liability of the jointly liable parties. By virtue of s. 86(1.2) of the MVA, both the driver, Mr. Chen, and Honda Canada are jointly liable for the damages of $1,600,000. Pursuant to s. 82.1, Honda Canada’s portion of that liability cannot exceed $1,000,000. Of the total liability, $1,000,000 has been discharged by ICBC on behalf of the lessee, but Honda Canada remains liable as a joint tortfeasor, for $600,000.
[36]         This result is consistent with the plain meaning of s. 82.1 of the I(V)A which limits the liability of Honda Canada to $1,000,000. Its portion of the joint liability will not exceed $1,000,000. In my view, the combined effect of s. 86(1.2) of the MVA and s. 82.1 of the I(V)A is to expose a lessor, like Honda Canada, to liability as a jointfeasor, of $1,000,000, but no more. Thus, in this case, if the driver/lessee had no insurance coverage, the lessor would be liable for the amount of $1,000,000. On the other hand, if the insurance coverage of the driver/lessee resulted in a payment of $1,600,000, then no amount would be payable by the lessor, Honda Canada.

Chairlift Negligence Claim Dismissed Due To Waiver

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Adding to this site’s archived cases addressing waivers of liability in sporting injury claims, reasons for judgment were released this week by the BC Supreme Court, Kamloops Registry, addressing the effect of a waiver following a ski-lift accident.
In this week’s case (Morgan v. Sun Peaks Resort Corporation) the Plaintiff was “preparing to load onto a chair lift at the ski resort owned by the defendant Sun Peaks Resort Corporation when she fell.  The approaching chair lift was not stopped in time and she was run over by it“.  Prior to this incident the Plaintiff signed a waiver of liability which is commonplace at ski resorts.  She sued for damages alleging negligence and the Defendant applied to have the claim dismissed based on the strenght of the waiver.   Madam Justice Griffin upheld the waiver and dismissed the lawsuit.  In doing so the Court provided the following reasons:
[30]         The Release describes the defendant and its directors, officers, employees, agents, contractors, and representatives as “THE OPERATORS”.  In the release section of the Release, it states that in consideration of the Operators accepting the application for a season pass and permitting the use of their facilities and property, including use of the lifts, the party signing agrees as follows:
1.         TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE OPERATORS AND THE PROVINCE, and its directors, officers, employees, agents, guides, instructors, independent contractors, sub-contractors, representatives, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as “THE RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my participation in any recreational activities in the controlled recreational area, or my presence around the recreational activities in the controlled recreation are, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.
[31]         As noted, the Release refers to the releasor’s “participation in any recreational activities in the controlled recreational area” or presence around those activities.  At the top of the Release, the term “recreational activities in the controlled recreational area” is defined as follows:
DEFINITION: In this agreement, the term “recreational activities in the controlled recreational area” shall include all activities or involvement in any way connected or associated with lift accessed & non-lift accessed activities within the controlled recreational area; including but not limited to skiing, snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight seeing or mountain biking throughout the controlled recreation area or with orientation, instruction, training or guiding given by THE OPERATORS.
[32]         Furthermore, the Release provided that the releasor assumed certain risks.  In a section headed “Assumption of Risks”, the Release provided:
ASSUMPTION OF RISKS: I am aware that recreational activities in the controlled recreational area involves many risks, dangers and hazards including, but not limited to; boarding, riding or disembarking lifts; changing weather conditions; exposed rock, earth, or other natural or man made objects; trees, tree wells, tree stumps and forest dead fall; changes or variations in the terrain which may create blind spots or areas of reduced visibility; changes or variations in the surface or sub-surface; streams, creeks; collision with lift towers, fences, equipment, vehicles or structures; collision with other participants, spectators or bystanders; negligence of other participants, spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks dangers and hazards referred to above exist throughout the controlled recreational area and that many are unmarked.
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.
[33]         On its face, the Release is very broad.
[34]         The Release specifically identified the risks of boarding, riding, or disembarking the lifts. It excluded liability resulting from the releasor’s participation in “recreational activities in the controlled recreational area” which included activities or involvement in any way connected or associated with lift accessed and non-lift accessed activities the Release covered.  It also excluded liability for the negligence of the Operator and its staff, including in safeguarding the releasor from the risks, dangers and hazards of recreational activities in the controlled recreational area, which as defined, included activities associated with lift accessed activities.
…
[55]         Coming back to the central allegation here, that the employee failed to press the stop button in time, the plaintiff has advanced no argument that would explain how that type of alleged employee failure could be considered to amount to mechanical breakdown or equipment failure.  There is no suggestion of any evidence that there was mechanical breakdown or failure of equipment. 
[56]         I conclude that the scope of the Release is sufficiently broad to encompass the plaintiff’s claim against the defendant based on alleged negligence of the chairlift operator in delaying in pressing the stop button immediately upon seeing the plaintiff fall.   I am satisfied that this is the only evidence of possible negligence that has been put forth by the plaintiff, and that this conduct does not fit within the exclusion clause in the Release.  Given my conclusion that such conduct would fall within the scope of the Release, the defendant must succeed in this application. 
[57]         The plaintiff’s claim is therefore dismissed.

"Outrageous" Behavior Still Not Enough to Overcome Expert Witness Immunity

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Although the  UK Supreme Court has recently stripped away at expert witness immunity the BC Courts appear reluctant to do so.  Reasons for judgement were released last week by the BC Court of Appeal addressing this.
In last week’s case (Lower v. Stasiuk) the parties were involved in a family law proceeding.  In the course of the proceeding a psychiatrist provided evidence who was found to be an “advocate” and whose actions were deemed “outrageous“.  Following this the Claimant sought to add the psychiatrist as a party and to seek special costs against him.  Both the BC Supreme Court and Court of Appeal refused to allow this noting that expert witness immunity guarded against such a remedy.  The BC Court of Appeal provided the following reasons:
[69]         It is not clear to me that the exception to witness immunity articulated in Phillips properly applies to a witness in Dr. Hay’s position.
[70]         Secondly, as noted by at least two of the justices in Jones, it has not been determined that Phillips was correctly decided.  Dr. Hay argues that Smith J. misinterpreted the Symphony case, on which he relied, and points out that in Symphony, the claim for third party costs (which was rejected by the Court of Appeal) was made on the basis that the third-party company had funded and been the “driving force” behind the defence (at 149) ? akin to maintenance.  Mr. Justice Smith expressly acknowledged that one of the bases for the claim against the third party in Symphony was that it was maintaining the action (at para. 60).
[71]         Thirdly, Dr. Hay suggests that adopting the exception to witness immunity from Phillips creates uncertainty about the boundaries of the immunity.  The evidence of the expert witness in Phillips was rejected on the basis that he breached his duty to the court by failing to view the issues objectively and straying into advocacy (see Smith J.’s reasons for judgment from the hearing in which the expert’s evidence was considered:  Phillips v. Symes (No. 1), [2004] EWHC 1887 (Ch) at para. 94).  Dr. Hay asks how an expert would know in advance what conduct could expose him to a claim for costs.
[72]         All of these reasons suggest caution in adopting the exception to witness immunity as has apparently been done in the U.K.
[73]         Another reason not to follow Phillips is that the trial judge did not have the opportunity to consider it and this Court does not have his decision on the question to review.  Were we to embark on such a change in the law at first instance, Dr. Hay’s only opportunity for an appeal would be with leave of the Supreme Court of Canada.  It is more appropriate that such a change be considered in the normal manner at first instance by a justice of the B.C. Supreme Court, followed by review by this Court.
[74]         I find no basis to interfere with the trial judge’s conclusion that witness immunity bars the father’s application to add him as a party for the purpose of assessing special costs.
[75]         It follows that I would not accede to this ground of appeal.

Sexual Assault and Surreptitious Videotaping Lawsuit Survives Defendant's Bankruptcy Protection

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Brief reasons for judgment were released recently by the BC Supreme Court, Duncan Registry, addressing whether a Plaintiff can continue with a lawsuit for damages for alleged historic sexual assault in the face of a Defendant filing for bankruptcy protection. In short the Court held this was possible.
In the recent case (Lundahl v. Poilievre) the Plaintiff was suing for damages alleging historic sexual assault and surreptitious recording.  The Court provided the following reasons confirming both causes of action can survive bankruptcy protection:
[4]             It is clear that the claim for sexual assault would, under s. 178(1), survive a discharge of bankruptcy.  What may be more debatable are the components of the action dealing with the surreptitious videotaping.  It was that latter part of the claim that the defendant focused on in opposing the stay.
[5]             In my view, the main part of the action is the sexual assault.  In spite of the defendant having pled guilty in a criminal trial, the videotaping may still be part of the evidence in the sexual assault trial as part of the background.  So irrespective of whether the claim for the surreptitious videotaping alone would survive the bankruptcy, it is nevertheless intimately wrapped up with the other part of the action.
[6]             The material prejudice to the plaintiff of the stay with respect to the sexual assault claim is that the action will be materially delayed, and in the interim she is suffering psychological harm.  I think I can take judicial notice of the fact that once an action is commenced, victims prefer to have their trials sooner rather than later. In my view, s. 69.4 should be applied here to lift the stay.
[7]             In addition, it appears to me the claim falls within a category of claims that the courts have not been willing to stay.  It would be equitable, as well, under s. 69.4, to lift the stay.
[8]             The stay will therefore be lifted with costs to the plaintiff.

$140,000 Non-Pecuniary Assessment for "Very Serious" Femur Fracture

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Adding to this site’s archived caselaw dealing with non-pecuniary damages for femur injuries, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with such a claim.
In this week’s case (Han v. Chahal) the Plaintiff pedestrian was injuries when she was struck by the Defendant’s vehicle while walking in a marked cross walk.  The Defendant was found fully responsible for the crash.  The Plaintiff suffered a variety of injuries the most serious of which was a fractured femur.  Although the Court found some issues with the Plaintiff’s reliability as a witness the Court did accept the injury left her with a degree of chronic pain and limited function.  In assessing non-pecuniary damages at $140,000 Mr. Justice Verhoeven provided the following reasons:
[154]     In summary, the plaintiff was physically healthy prior to the accident.  She suffered a very serious injury to her femur and a moderate injury to her wrist.  These injuries have healed uneventfully from a physical point of view, after two surgeries to her leg.  No specific ongoing organic cause for her hip pain has been established.  Although she likely overstates her degree of disability, she has developed chronic pain, in relation to several areas of her body.  She has depression and anxiety.
[155]     Her major complaint of pain is with respect to her left hip.  When she saw Dr. Chin February 3, 2010, about 14 months after the accident, she had 75% to 80% improvement in her orthopedic injuries, but since then she has development several new pain complaints and, overall, her condition has not improved.  Her chronic pain and depression have resulted in altered mood, lack of energy, fatigue, irritability, and some cognitive difficulties.
[156]     The accident caused a drastic change to the plaintiff’s pre-accident health, lifestyle, and enjoyment of life.  I accept that to date, more than four years post-accident, the plaintiff continues to suffer significantly from the effects of the accident.
[157]     However, the assessment of her loss is complicated by the fact that her evidence is somewhat unreliable.  Further, treatment options have not yet been explored, and the prognosis is uncertain.  There is a substantial risk of pain, suffering, and disability persisting indefinitely.  The preliminary prognosis for complete recovery is negative.  The potential extent of recovery is unclear…
[173]     Having regard to all of the non-exhaustive list of factors commonly considered in relation to assessment of damages for non-pecuniary loss, as set out in Stapley, in the circumstances of this case and bearing in mind the authorities to which I have referred, in my view the appropriate award for non-pecuniary loss is $140,000.