Tag: Initials Orders

$140,000 Non-Pecuniary Damage Assessment for T-12 Burst Fracture

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages following a 2005 motor vehicle collision.
In this week’s case (X v. Y) the Plaintiff was an RCMP officer.  (Supplemental reasons were released permitting the Plaintiff to identify himself by initials and to seal the Court file given the Plaintiff’s undercover work).  He was responding to an emergency call.  He was travelling on his motorcycle when he was struck by a truck driven by the Defendant who was in the course of making a U-turn.  Although fault was put at issue the Court found the defendant fully liable for the collision.

The Plaintiff suffered a burst fracture at the T-12 level which required surgical intervention.  He suffered from chronic pain following this and although he was able to return to police work he could only do so in a more administrative (as opposed to front-line) capacity.  In assessing non-pecuniary damages at $140,000 Madam Justice Dardi provided the following reasons:
[101] The plaintiff underwent surgery on July 21, 2005, after which Dr. D. explained to the plaintiff that he had a burst fracture in his vertebrae in the thoracolumbar region, and that metal rods, clamps and screws had been placed in the area to fuse the spine together. The plaintiff was fitted with a clamshell brace in order to stabilize his fused spine and prevent him from moving. He was not allowed to sit or stand up unless he was wearing this brace. He used a walker to manoeuvre around the hospital. After physiotherapy treatments, he was able to walk short distances, go to the bathroom, and get in and out of his hospital bed. He was released from the hospital on July 27, 2005…
[147] It is uncontroversial that the plaintiff suffered a serious injury in the accident: a fractured spine which required surgical fusion with metal instrumentation. The medical evidence clearly establishes that he is permanently disabled insofar as repetitive heavy bending, lifting and high-impact activities. He has an increased risk for the development or acceleration of degenerative disc disease and is at an increased susceptibility for reinjuring his back…




[163] In summary on this issue, I find that the plaintiff’s symptoms are genuine. He regularly experiences varying degrees of pain and significant stiffness, tightness, and spasms in his back. The cold exacerbates his symptoms. He will continue to experience episodic aggravation of his symptoms. He is at an increased risk of developing degenerative arthritis and he has an increased susceptibility for further injury to his back. He also faces the possibility of another surgery to remove the hardware in his back. He has reduced stamina and tires much more easily than prior to the collision. I also conclude that as the plaintiff ages, there is a substantial likelihood that his pain and discomfort will increase because he will not be able to maintain the same level of conditioning in the muscles supporting the fused area of his back.

[164] In terms of his career, the preponderance of the evidence clearly supports a finding that the plaintiff is not fit to perform the full range of policing duties. He must avoid impact activities and any risk of physical altercations with suspects, which restricts him from participation in front-line policing duties. He can no longer perform the duties of a motorcycle officer, nor is he able to pursue his ambition to join the ERT as an operational member…




[179] While the authorities are instructive, I do not propose to review them in detail, as each case turns on its own unique facts. Having reviewed all of the authorities provided by both counsel, and in considering the plaintiff’s particular circumstances, I conclude a fair and reasonable award for non-pecuniary damages is $140,000.

BC Civil Sex Abuse Claims and Party Anonymity: Protecting the Plaintiff by Protecting the Defendant


Lawsuits are public matters.  Generally anyone is free to go to a Court Registry and obtain the names of parties to lawsuits and look at the formal issues of their claims.  This ‘open-court’ principle is fundamental in our Democracy and applies not only to criminal cases but also to civil cases including those dealing with claims for damages for sexual abuse.
It is understandably difficult for Plaintiffs to bring lawsuits dealing with the impact of sexual abuse in the best of circumstances and the open-court principle can serve as an unwelcome discouragement.  Accordingly BC Courts routinely make orders under the Court’s “inherent jurisdiction” to permit plaintiffs to identify themselves by their initials to protect their identity when dealing with sensitive lawsuits.
Sometimes, however, identifying a plaintiff by initials is not enough to protect their identity.  When this is the case the Court can go further to ensure a fair balance is struck between our open court system and the lack of deterrence of Plaintiffs seeking access to justice.  This balance was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (A.B v. C.D.) the Plaintiff sued a former high school teacher alleging that he sexually exploited, assaulted and battered her.  The Plaintiff also sued the school board arguing that they were ‘vicariously liable‘ for the misdeeds of the teacher.
In the course of the claim the Plaintiff was allowed to refer to herself by the initials AB.  The Defendants brought a motion seeking that they also be allowed to refer to themselves by initials.  The Vancouver Sun, wishing to fully report on the story, intervened and opposed the motion.  Madam Justice Gray ultimately granted the motion.  The reason for doing so was not to protect the defendants but rather to more meaningfully protect the identity of the Plaintiff.
The Court set out a lengthy summary of recent cases discussing the varying principles at stake.  From there Madam Justice Gray provided the following short and useful reasoning in allowing the initials order:

[81]        If the former teacher’s name is published in this case, it could lead members of the public, particularly people who were students and teachers at the plaintiff’s former school, to identify the complainant as the person involved in the criminal proceedings and these related civil proceedings. As a result, the September 27, 2010 ban shall be clarified to provide for restraint on the publication of the former teacher’s name.

[82]        It may seem odd that the former teacher will be treated better than others convicted of sexual offences if his name and identifying information is suppressed. However, this is simply the result of the publication ban and the circumstances. For example, where an accused person has a family relationship to an accused, it is routine to avoid publication of the name of the accused, because it could lead to identification of the complainant. This does not suggest that sexual offenders who prey on family members deserve better treatment, but simply reflects the inevitable result of protecting the complainant’s identity…

[84]        Schools are sufficiently small communities that a few facts can readily identify a former student. Here, the evidence shows that two teachers from the plaintiff’s former school have recently been accused of sexual misconduct with a student. That is such a small number of teachers that publication of the name of the school is likely to lead to identification of the plaintiff, particularly in combination with other details relevant to the plaintiff’s claim, such as her career.

[85]        In this case, a ban on publication of the name of the plaintiff’s former school is required for compliance with the September 27, 2010 ban on publication of information that would tend to identify the plaintiff…

[86]        The evidence shows that there are several high schools operated by the defendant school district. The community served by the defendant school district is a relatively small community. The only evidence of alleged or proven sexual misconduct by teachers in the defendant school district was of the two teachers who formerly taught at the plaintiff’s former high school.

[87]        In the circumstances of this case, publication of the name of the school board is likely to lead to identification of the plaintiff. As a result, the order must be clarified to prohibit publication of that information.

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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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