Tag: hand injury cases

Can You Successfully Sue For Injuries in a "No Impact" Collision?

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.
The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.
Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:
[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…
[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…
[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.

Injuries to Passengers of Drunk Drivers in ICBC Claims

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a serious hand injury sustained in a 2006 single vehicle accident.
The Plaintiff was a passenger.  The Defendant driver lost control of the vehicle and it flipped over onto its roof.  The Plaintiff was injured in this collision.  ICBC admitted fault on behalf of the driver, the main issue at trial was whether the Plaintiff was partially at fault for her own injuries for getting into a vehicle when she knew or ought to have known that the driver was impaired.
In finding that the Plaintiff was partly to blame for her own injuries the court said as follows:

[17]            In this case, the evidence establishes that the plaintiff must indeed assume some of the responsibility for her injuries.  The plaintiff knew the defendant was drunk before she got into the truck.  Although she was so drunk she was staggering and she does not recall the drive to the parking lot, she does recall the defendant’s behaviour and testified that she knew he was drunk when they left the bar.  She needed a ride home and either asked him for one or voluntarily accepted one from him. 

[18]            However, fault must be apportioned on the basis of the nature and extent of the departure from the respective standards of care: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 at para. 24.  On that basis, much more of the fault belongs to the defendant.  He was clearly negligent.  Not only was he impaired, but he chose to spin doughnuts, causing the truck to flip over.  He had apparently driven without incident to the parking lot, and it was his decision to drive, while impaired, in such a dangerous fashion in the lot itself that led to the accident.  While his behaviour was fuelled by alcohol, and the plaintiff should have foreseen that a drunk driver could put her in a position of danger, she was exposed to a greater degree of danger by his reckless antics.  His departure from the applicable standard of care was much greater than the plaintiff’s.  I find the appropriate percentage of contributory negligence in all these circumstances to be 25%.

The Plaintiff sustained a serious hand injury.  In valuing her pain and suffering at $50,000 the court found as follows:

[20]            The plaintiff, who is right-handed, suffered serious injuries to her left hand.  All the skin was removed from the back of her hand, and the tendons were exposed.  Her middle finger was fractured. 

[21]            She has had seven surgeries, during which the tendons have been repaired, the middle joint of the third finger has been fused, and a graft of skin from the inside of her thigh has been applied to the back of her hand.  This skin graft was quite thick and has been reduced in stages.

[22]            The plaintiff does not have pain or numbness in her hand, but has stiffness in the metacarpal phalangeal joints – that is, the joints that connect the finger to the hand itself – on her index, middle and ring fingers, with pronounced stiffness in the middle joint of her index finger.  The fusing of the middle joint of her third finger means it will not bend.  She has signs of early osteoarthritis in the middle and ring fingers.  Her micro-surgeon/hand specialist, Dr. Hill, is of the opinion that she has the potential to develop arthritis in all the joints of her left hand.  The third party’s specialist, Dr. Gropper, does not share that latter view, but apart from that his opinions did not differ from Dr. Hill’s.  Arthritis could raise the possibility of joint replacement in the future, but the doctors did little more than mention this without elaboration. …..

 

[30]            In summary, as a result of the accident, the plaintiff was required to have seven surgeries on her left hand.  She is left with a non-dominant hand that is obviously different in appearance and function, regardless of the remaining surgery that will give some further amelioration in those respects.  She is left with stiffness in three fingers, one of them fused, but does not suffer pain or numbness.  She keeps her hand covered to avoid embarrassment. She has scarring, reduced grip strength, and reduced tolerance for repetitive activities involving her left hand.

[31]            Based on the evidence before the court, the effect on her daily life and activities is not extensive.  She finds some household chores difficult, and her left hand becomes tired when driving.  She does face the prospect of advancing arthritis, particularly in the two presently affected joints.

[32]            Considering all of the evidence, I am of the view that the amount proposed by the third party is reasonable.  I award $50,000 for non-pecuniary damages. 

This case serves as a stark reminder that if you know or ought to know that the driver of your vehicle is impaired by alcohol you can be found partially at fault for your own injuries if the driver is involved in a crash.  Such a finding of contributory negligence will affect the value of your ICBC claim.  

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If you would like further information or require assistance, please get in touch.

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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