Tag: Carson v. Henyecz

Expert Witness and Plaintiff Preparation Time Recoverable In Bill of Costs

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, addressing costs for witness preparation.
In last week’s case (Carson v. Henyecz) the Plaintiff was injured in a motor vehicle collision.  She succeed at both a liability trial and subsequently at a quantum assessment.  The Plaintiff was awarded costs.  With the exception of experts, the Plaintiff was the only witness at trial.  The Plaintiff sought costs for interviewing witnesses for both the Plaintiff and expert witnesses.  ICBC argued this was not recoverable as item 18 of the Tarriff does not include parties nor experts.  Master McDiarmid disagreed and allowed costs for these items.  In doing so the Court provided the following reasons:
[24]         The most significant dispute between counsel was with respect to item 18. The plaintiff submitted that the process associated with interviewing witnesses included interviewing those witnesses with respect to their attendance at trial. The plaintiff submitted that this included interviewing the plaintiff, who was of course a witness on her own behalf in both trials. It was also submitted by plaintiff’s counsel that item 18 would also permit units to be awarded for interviewing the experts with respect to their attendance at trial…
[30]         Forms 20 and 21, the case plan proposal and case plan order, have separate sections for expert witnesses and contain provisions for providing a witness list. Form 41, the trial brief, has a heading entitled “Witnesses to be Called On,” which requires the parties to provide the names and addresses of the witnesses the filing party intends to call at trial, together with an estimate for the time each witness will need for giving direct evidence. There is no differentiation on a trial brief between witnesses who are parties, witnesses who are representatives of corporate parties, expert witnesses, or other witnesses.
[31]         From this I conclude that a party can claim under item 18 with respect to all witnesses for all parties, including in this case the plaintiff and including expert witnesses.

Non-Pecuniary Damages Discussed for Physical Injuries Complicated by Pre-Existing Psychological Issues

It is a well worn principle that you take your victim as you find them when assessing damages for personal injuries in BC.  It is equally true that a defendant is not responsible for compensating an injured party beyond the injuries that they have caused.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with these principles in the face of chronic pre-existing psychological injuries.
In this week’s case (Carson v. Henyecz) the Plaintiff was injured after being struck by a vehicle being driven by her mother.  The Plaintiff sustained injuries that “essentially recovered…within a year of the accident”.  The Plaintiff, however, had a pre-existing “borderline personality disorder” and this caused for a prolonged recovery and with other complicating factors.  The Court grappled with this pre-existing injury, its effect on recovery and further on the fact that the Plaintiff’s symptoms at the point of trial would be largely similar even absent the collision.  In assessing non-pecuniary damages at $90,000 Mr. Justice Powers provided the following reasons:
[111]     I find that Ms. Carson had essentially recovered from her physical injuries within a year of the accident. I accept that she continued to have some pain for at least another year and still occasionally suffers pain from the injury. However, from a physical point of view she has made an excellent recovery. I am not satisfied that the shoulder complaints relate to the accident or were caused by the accident. In November of 2008, when she began to notice shoulder pain, the doctor’s evidence indicates that she had a full range of motion and was quite strong.
[112]     I do find that her pre-existing psychological or borderline personality disorder was a factor in the impact this accident had on her. These injuries and the circumstances of the accident had a greater impact on Ms. Carson than they would on somebody without her pre-existing psychological problems.
[113]     I also find that the necessity for narcotic medication to deal with the pain immediately after the accident and for at least a short time after also complicated and delayed Ms. Carson’s efforts to free herself from her prior addiction and abuse of pain medication. I find that the psychological impact of this accident also complicated her efforts to free herself from the pain medication and made it more difficult for her to do so.
[114]     However, the accident is not the cause of Ms. Carson’s ongoing problems. I am satisfied her ongoing problems, both psychological and physical, are as a result of her prior psychological problems. Given her complicated psychological history, I find that the accident has become the focus of and not the cause of her complaints. It is difficult to be precise about when the accident was no longer a significant contributing cause to her complaints. However, I am satisfied that within two to three years of the accident, and certainly by the time of the trial, the accident was no longer a significant contributing cause. Similar to the case of Wilson and the cases cited in that decision that I have referred to in paras. 105 and 106 of my reasons, Ms. Carson’s pre-existing condition was so dominant in her life and, based on the evidence I have heard, would have continued to dominate her life whether this accident occurred or not. Essentially she appears to be back to her pre-accident condition and it cannot be said that the accident is the cause of her present condition.
[115]     In considering all of the above, I find that the appropriate damage award for non-pecuniary damages is $90,000.00.

Sometimes You Really Do Have to Sue Your Mother


Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.
When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.
In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway. At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.
The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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