Although the BC Supreme Court has discretion to consolidate different claims for trial in cases where competing claims are “so interwoven as to make separate trials at different times before different judges undesirable” this is a discretion rarely exercised when there are separate plaintiffs with distinct injury claims that require individual quantification. This reality was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (MacMillan v. Shannon) 4 occupants of a vehicle were involved in a collision with another vehicle All sued for damages in separate claims. Liability and damages were disputed in all claims. ICBC brought an application seeking to have all trials heard together. This application was dismissed with the key factor in derailing the application being the individual quantum claims being advanced. In addressing this point Master Caldwell provided the following reasons: [8] Finally, other than on the issue of liability, no one is arguing that there will be a significant or any saving on the presentation of expert evidence. Each of the plaintiffs has a different family doctor. Two of the plaintiffs now live in Quebec so if there is any further expert evidence it is unlikely to overlap and may have to be provided by way of teleconferencing to minimize expense. Again, it is clear that there are ways of reducing complexity, duplication and inconvenience; it will be up to counsel to determine whether that happens or not. [9] In short, I am of the view that none of the second arm of tests arising in the Merritt case (supra) or the subsequent case of Bhinder v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The application for consolidation and related relief is dismissed as is the application for removal of any or all of the actions from Rule 15-1 fast track.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue. In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule. The opinion evidence, however, was excluded.
In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision. The expert died before trial. In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons: [25] I return now to Dr. Kay’s report. Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident. The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning. I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence. Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff. Those tests provide a largely objective measure of the plaintiff’s cognitive functioning. These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability. [26] Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders. Those opinions have a significant subjective component. They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity. The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation. There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her. [27] Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history. The file has not been produced and apparently is not available. Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years. Ms. Good informed counsel that she has shredded all of her records. If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. [28] In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence. In the circumstances of this case, there is no adequate substitute for cross-examination of the expert. [29] Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders. Relevant direct evidence is available from another source. The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment. [30] Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible. The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.
In case there aren’t enough reasons to avoid a fistfight at your kid’s sporting events, here’s one more; being on the wrong end of a subsequent lawsuit in the BC Supreme Court will expose you to loser pays costs consequences.
The BC Supreme Court, New Westminster Registry, released reasons for judgement today with such a result. In today’s case (Charland v. Cloverdale Minor Baseball Association and Wheeler) the Plaintiff’s son was playing in a Pee Wee baseball game. The Defendant’s son was the scheduled umpire who arrived late. He was told to go home the by Plaintiff. He went home upset and his father came to the baseball game to discuss what happened with the Plaintiff. After the two fathers exchanged some colourful words the Defendant “walked away 8 to 10 feet” when the Plaintiff “stood up from his chair and moved forward quickly” with “the intention to fight“. The Defendant hit the Plaintiff in the head and then grappled for a while after that. The Plaintiff was injured in the incident and sued for damages.
Madam Justice Watchuk dismissed the lawsuit finding it was a consensual fight. The Court provided the following reasons: [88] Consent is a defence to the torts of assault and battery. If Mr. Wheeler alleges and proves that the parties agreed to the physical contact in question, then Mr. Charland cannot complain of injuries suffered. The onus of establishing consent is on Mr. Wheeler: Although the fact that the plaintiff consented to the defendant’s conduct effectively negates the argument that a wrong has been committed, consent is treated as a defence which must be established by the defendant. Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 128. [89] If a fight is proven to be mutual or consensual, the parties cannot complain of injuries suffered in the course of the fight: A related matter concern consent to violent acts in other contexts, for example, in the case of “mutual fights”. The case law supports the proposition that those who engage in fights, even though these activities may be criminal, cannot complain of injuries suffered in the course of the fight, unless the force which is used by one of the combatants is excessive or unnecessary. The dismissal of the plaintiff’s actions in these cases may be grounded either on the basis of the defence of consent or illegality. Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 134…. [97] The conversation then escalated. Mr. Charland says that Mr. Wheeler’s tone suddenly changed. I find that the reason for that sudden change in Mr. Wheeler’s tone was Mr. Charland’s telling him to “fuck off”. After Mr. Charland escalated the conversation to a confrontation, Mr. Wheeler replied with words to the effect of “fat shit”. There was some loud conversation between the two fathers. [98] Mr. Wheeler then walked away to process Mr. Charland’s response. He still wanted to resolve the situation and assist his son Cam. As Mr. Wheeler walked away, Mr. Charland said, “I’ll get you later”, as he told Cst. Lee. The words he told the court he said, “I’ll do you later”, do not equate, I find, with “I will meet you later”. In making that statement, Mr. Charland had formed the intention to fight and had chosen to accept what he mistakenly understood to be an invitation to fight from Mr. Wheeler. [99] Mr. Wheeler had walked away 8 to 10 feet to the grassy area. He walked back part of that distance to Mr. Charland. Mr. Charland stood up from his chair and moved forward quickly towards Mr. Wheeler. When Mr. Wheeler saw him coming, he had a real fear of being injured or, as he put it, “run over”. Mr. Wheeler then hit Mr. Charland once in the head. The moments of contact between the two fathers included some mutual grabbing which Mr. Geppert described part of, Ms. Brozer referred to as a “kafuffle” and Ms. Korrins described as grappling. In the course of that interaction, Mr. Charland slipped and fell on the grass. Mr. Wheeler then walked away after the intervention of some of the other witnesses and observers. [100] Mr. Wheeler did not kick Mr. Charland. There is no independent evidence of a kick. If Mr. Charland was injured in his kidney during the altercation at the park, I conclude that the injury occurred from his fall on the grass. Similarly, Mr. Wheeler’s injury to his eye which resulted in a black eye was a result of the mutual grappling and physical interaction rather than a punch by Mr. Charland directly to Mr. Wheeler. [101] I find that when Mr. Charland got up out of his chair and moved quickly towards Mr. Wheeler who was then 8 to 10 feet away on the grass Mr. Charland had an intention to fight. Mr. Wheeler reacted by engaging in the fight after walking back toward an angry man. Mr. Charland’s action in standing up and moving toward Mr. Wheeler, as it created fear, was an assault. Mr. Wheeler responded with a punch which was a battery. I conclude that the proper characterisation of the altercation between the two fathers is that it was consensual.
The Court went on to order that the Defendant pay the Plaintiff’s costs providing an expensive lesson to the Plaintiff for this incident.
A few years ago I discussed litigants spying on themselves through the use of social media. Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision. He claimed significant damages and proceeded to trial. Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“. The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence. In dismissing the appeal the Court provided the following reasons: [25] A major thrust of the respondent’s case was an attack on the credibility of the appellant. Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years. The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries. It was supplemented by YouTube videos to the same effect. [26] The appellant presented evidence that he has medical difficulties, both physical and mental. The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident. There was evidence that these difficulties were more severe manifestations of pre-existing problems. Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility. [27] I have reviewed the litany of medical evidence as canvassed by the parties. A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise. In my view, there was evidence on which the jury rationally could reach its verdict. I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall. [28] I would dismiss this appeal.
Reasons for judgement were released last week by the BC Court of Appeal addressing, among other topics, whether a new trial should be ordered after clinical records were introduced to a jury without proper authentication.
In last week’s case (Desharnais v. Parkhurst and Romanowski) the Plaintiff was injured in two motor vehicle collisions. He sought substantial damages as a result but a jury rejected much of his claim awarding $31,000 in damages. The Plaintiff appealed arguing multiple errors were made at the trial level with the most significant, presumably being the introduction of various clinical records without proper authentication. The BC Court of Appeal held that while this was a clear error no harm was done and dismissed the appeal. The Court provided the following reasons: [93] Accordingly, the records could be admitted for the truth of the fact that the statements were made, if the records were kept as part of the counsellor’s ordinary course of business, and were recorded within a reasonable time of the conversation with the plaintiff. Similar, though not identical, considerations would be made under Ares. [94] There was no clear evidence of these conditions having been met. Normally, the preconditions would be dispensed with by using a document agreement or securing admissions through a Notice to Admit. I have not been able to find anything in the record to suggest that formal proof was dispensed with. Rather, in this case the plaintiff objected to their admission. [95] In those circumstances, it seems to me that counsel seeking to admit the records as business records under common law or statute would have to tender proof of the preconditions for admissibility: Cunningham v. Slubowski, 2003 BCSC 1854. This was not done here. [96] Accordingly, I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute. Plaintiff’s counsel disputed that the records qualified as business records. Even if there were little or no substance to his position, the effect of his objection was to require the defence to lead the evidence to comply with the pre-conditions for admissibility. [97] Having reviewed the appeal record, however, I do not see this error as sufficient to warrant intervention from this Court. Had the records not been admitted, the information contained in them would have nonetheless been placed before the jury, as the content of the records was summarized in the report of the plaintiff’s expert, Dr. Rami Nader. Dr. Nader’s summary of the records included that the plaintiff complained about stress stemming from his relationship with two women and that he suffered a back injury following the accident in his driveway. Plaintiff’s counsel had the report admitted and sought no limiting instruction on the use of the report. [98] Further, the trial judge’s instruction that the records were an example of a prior inconsistent statement was one of several prior inconsistent statements made by the plaintiff. The trial judge also pointed out inconsistent statements made under oath. The plaintiff’s own counsel referred to the plaintiff as “a poor historian” in his closing submissions. On the whole, it seems unlikely that the assessment of the plaintiff’s credibility was significantly influenced by the statements in the records. [99] The jury was also unlikely, given the amount of medical evidence, to place much weight on the records suggestion that the plaintiff was symptomatic before the first and second accident. Further, this information was before the jury by virtue of the plaintiff’s expert’s report. [100] Based on the above, I do not see this error as warranting intervention from this Court.
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.
In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk. Although the Defendant disputed liability he was found fully liable for the collision.
The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries. The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis. In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons: [46] Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11. [47] Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively. [48] Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked. [49] Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg. [50] Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated… [76] In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with liability following an unfortunate incident of self-electrocution.
In this week’s case (Bendak v. Bohnet) the 13 year old plaintiff was visiting his friend’s home. Before going out to play his friend’s mom directed that her son finish a chore dealing with the property’s irrigation pipes. The Plaintiff tagged along helping his friend to complete the chores. While attending to the pipes they realized a rodent may have been caught in one of the pipes. The boys stood the pipe up which measured some 40 feet in length. It came into contact with overhead powerlines badly electrocuting the Plaintiff.
The Plaintiff sued the home owners arguing they were liable for the incident pursuant to BC’s Occupier’s Liability Act. Madam Justice Schultes agreed and in finding the homeowners negligent provided the following reasons: [59] What I consider to be the critical factors, however, are the particular circumstances under which Tanner was injured, and not the general practice as applicable to irrigation under power lines in this area. [60] Firstly, one must consider the physical setting. Accepting that the usual and proper manner of moving irrigation pipes is horizontally carrying them, and that there is never any reason to stand it vertically during that process, this was still an area fraught with potential peril. Metal pipes of a sufficient length to touch the high voltage line if stood up vertically were strewn about. All that prevented a potentially fatal contact between them were whatever best practices may have been inculcated in Connor in his instructions about moving irrigation pipes, which did not include specific training about this risk. In other words, this was a potentially perilous zone, awaiting only the easily achievable, if completely unnecessary, action of standing up an irrigation pipe to be taken for serious harm to occur. [61] Second, one must consider the characteristics of those who were allowed to go into this dangerous physical setting. Although they had both turned 13, these were Grade 7 boys — children by any reasonable description — whose propensity for using objects in every way other than that which they are intended is an intrinsic attribute of childhood. I do not think it is actually necessary to go so far as to find the Bohnets ought to have foreseen that the boys would gopher hunt by tipping up a pipe, although that is certainly within the reasonable range of activities that they might get up to. It is, rather, that with a highly dangerous power source 40 feet or less above them, with a means of making contact ready at hand, the Bohnets depended only on Connor’s remaining within the four corners of the chore itself to keep him and Tanner safe, despite the self?evident immaturity and unpredictability that are attributes of children of that age. [62] I think that represents a real risk, one that a reasonable person would regard as anything but farfetched. It is an example of a possibility of serious harm, one that would occur to the mind of a reasonable person. Its relative frequency as an accident in commercial agriculture does not speak to the dangers posed by the activity being carried out by children. The specialized danger to children inherent in this situation means lack of attention by Mr. Bohnet to the Workers’ Compensation poster, directed to him in his capacity as an employer, is not particularly significant either. [63] My conclusion is that unsupervised children left in possession of objects capable of inflicting serious harm on themselves if they engage in quite typical childish behaviour should be seen by any reasonable person as a significant risk of harm. Simply, these boys were put in a situation in which their safety depended entirely on Connor doing only that which he had been entrusted and told to do, and not behaving as children.
Adding to this site’s archived posts addressing BC non-pecuniary assessments for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic AC joint injury.
In last week’s case (Westfield v. Lindstrom) the Plaintiff was involved in a 2010 rear end collision. Fault was admitted by the Defendant. The Plaintiff suffered from soft tissue injuries which largely recovered her AC joint injury remained problematic at the time of trial that were expected to continue indefinitely. In assessing non-pecuniary damages at $50,000 Mr. Justice Abrioux provided the following reasons: [58] I make the following findings of fact based on my consideration of the evidence, both lay and expert, as a whole: a. prior to the Accident the plaintiff had occasional difficulties with her low back. In addition, she had degeneration in her right shoulder area. b. the plaintiff also suffered from asthma and had respiratory problems, which affected her daily living activities to various degrees from time to time. These difficulties made her more susceptible to developing a more serious condition in the future. That in fact occurred after the Accident. The development of the respiratory condition to its current stage which the plaintiff concedes is “serious and disabling,” plays an important role in her day-to-day functioning and ability to enjoy the amenities of life. c. the plaintiff sustained various soft tissue injuries in the Accident. It is also likely she sustained an injury to the AC joint in the right shoulder. Although the plaintiff has recovered from certain of these injuries she has ongoing pain and discomfort to her right shoulder, with associated discomfort in her neck, which is likely permanent. d. the Accident injuries affected the plaintiff’s “original position”, that is, the state of her health and its effects on her functioning prior to the Accident. This original position included a right shoulder with degenerative changes. e. although the plaintiff has indicated she would be prepared to undergo an operation to her right shoulder if that were recommended to her, she has not established that recommendation is likely to occur. There is evidence the operation could pose a significant risk to her life. Quite understandably, the plaintiff testified she would not undergo the surgery if there were in fact such a risk to her. There was no evidence from an anesthesiologist to the effect the plaintiff’s respiratory condition would not in fact result in a significant risk to her life were she to undergo an operation which involved a general anesthetic. This is what would likely occur in this case. f. while the plaintiff does have some ongoing pain and restriction to her shoulder which is likely to be permanent, the effect of the ongoing Accident injuries plays a considerably less negative role in her day-to-day functioning than do the ongoing effects of her serious respiratory condition. g. the plaintiff has downplayed to some extent the respective contributions to her current state of health caused by the Accident injuries on the one hand and the respiratory condition on the other. h. notwithstanding this, the injuries sustained in the Accident do affect, to some extent, the plaintiff’s current ability to function and the quality of her life generally. I accept the plaintiff’s evidence and that of her family members that she is no longer as happy and outgoing as she was prior to the Accident. I do not, however, accept that this state of affairs is entirely due to the injuries sustained in the Accident. The effect of the respiratory condition on the plaintiff’s life, which includes being the sole cause of her inability to work in a position which provided her with great personal satisfaction as a special needs educational assistant, also contributes to her current psychological state. i. the plaintiff has made significant recovery from the effects of the injuries sustained in the Accident. This occurred within approximately 18 months to two years after the Accident. She is left, however, with ongoing aches and pains to her upper back and right shoulder area. These will continue indefinitely to some degree. The ongoing effects of the injuries sustained in the Accident also affect to some degree her ability to perform certain household tasks… [72] I conclude the effect of the plaintiff’s injuries in this case, while generally comparable to those in Rozendaal and Bhadlawala, are somewhat more severe insofar as the day-to-day enjoyment of life and ability to function is concerned. I award the plaintiff $50,000 under this head of damages, which includes $5,000 for loss of past and future loss of housekeeping capacity.
Update June 18, 2013 – Leave to Appeal the below decision was refused by the BC Court of Appeal
__________________________________________________ Adding to the list of ‘other factors‘ Courts can consider when deciding whether a formal settlement offer should trigger costs consequences following trial, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, considering the fact that an infant settlement would require Public Trustee approval.
In last week’s case (Nemoto v. Phagura) the Plaintiff was involved in a collision when she was 13. One week before trial ICBC made a formal settlement offer which was $300 greater than the damages she was ultimately awarded at trial. ICBC applied to strip the Plaintiff of her post trial costs and to be awarded theirs. Mr. Justice Smith refused to do so noting that the offer was only 1% greater than the trial award, that there was no competing defence medical evidence to better define risk and lastly that the Public Trustee’s approval would be required which would result in an abandonment. Addressing the last factor the Court provided the following reasons: [10] A further complication arose in this case from the fact the plaintiff was 17 years old at the time of trial. That means a settlement based on the formal offer would have required the consent of the Public Guardian and Trustee (“PGT”) pursuant to s. 40 (7) of the Infants Act, R.S.B.C. 1996, c.223. The absence of defence medical evidence may have made it more difficult for plaintiff’s counsel to persuade the PGT of the appropriateness of the settlement. [11] In any case, the PGT’s views could not likely have been obtained in the week between the date of the offer and the date of trial, requiring an adjournment of the trial. The plaintiff had to consider the delay that would have been involved in proceeding to trial at a later date in the event, however unlikely, the PGT was not prepared to consent. [12] In these circumstances, I cannot say that the offer ought reasonably to have been accepted and I decline to give effect to it in the matter of costs.
In what can only be described as a unique and bizarre collision, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, assessing fault for a collision where an individual was struck by his own vehicle put in motion by his spouse.
In this week’s case (Mayne v. Mayne) the Plaintiff was in his vehicle with his wife, the Defendant, occupying the passenger seat. As he was pulling out of his garage he stopped the vehicle and went back in his home to retrieve a key. He left the vehicle running in neutral (mistakenly believing it had been placed in park). The vehicle slowly started to run down into the roadway. His wife, concerned it would be involved in a collision, reached over and attempted to put the vehicle in park. She was not successful, however, and shifted the vehicle into drive. The vehicle lurched forward and struck the Plaintiff who was just coming back out of the home.
The Court found both individuals equally to blame for the incident. In placing 50% of the fault on the Defendant Madam Justice Bruce provided the following reasons: [31] Having regard to the circumstances of this case, I am unable to find that Mrs. Mayne has satisfied the onus of proof regarding the defence of “agony of the moment”. There was only a nominal risk of harm to the neighbour’s home and Mrs. Mayne panicked and took unreasonable and dangerous steps to stop the backward rolling vehicle. While Mrs. Mayne did not expect the Buick to roll backward, having no foreknowledge of Mr. Mayne’s failure to engage the emergency brake or to leave the vehicle in park, she nevertheless severely overreacted to the perceived danger. Given the very slight slope of the driveway, and viewed in light of the video presentation showing the likely speed of the Buick as it rolled backward, it is apparent that things were not happening quickly at all. The Buick was travelling ever so slowly albeit in a backward direction. There was no one in the area and the roadway was devoid of other traffic. The neighbour’s home was a considerable distance away. The Buick would have to travel out of the driveway, over the first curb, cross the roadway and negotiate the next curb, and travel through the lawn and the hedges of the neighbour’s home before it would have come into contact with a structure. [32] In these circumstances, Mrs. Mayne had time to consider what to do. She could have easily unbuckled her seatbelt to make it easier to reach over and place the vehicle in park. She could have simply taken the key out of the ignition. There was no imminent danger from any objective point of view. [33] The court must not make armchair judgments based on hindsight; however, clearly Mrs. Mayne panicked in a situation that would not have panicked a reasonable person in the same circumstances. Counsel argued that her age should be a factor. At 81, her reaction times and her judgment would be impaired. However, the law cannot countenance a lower standard for elderly drivers. Mrs. Mayne had a drivers’ licence and regularly operated the Buick. As a consequence, the court must presume that she possessed sufficient competence to operate a motor vehicle safely. [34] For these reasons, I find that Mrs. Mayne was negligent when she took control of the Buick and struck Mr. Mayne.
