Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a rare headache disorder following two vehicle collisions.
In today’s case (Erickson v. Saifi) the Plaintiff was injured in two collisions and sued for damages. Liability was established. The crashes resulted in chronic SUNCT headaches along with soft tissue injuries. The prognosis for meaningful recovery was poor. In assessing non-pecuniary damages at $140,000 Madam Justice Baker provided the following reasons:
Although it is the exception rather than the norm, when a motorist is rear-ended they can sometimes be found partly if not fully at fault for a collision. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, with such an outcome.
In today’s case (Bingul v. Youngson) the Plaintiff was rear-ended by a dump-truck driven by the Defendant. The parties had different versions of how the collision occurred but the Court noted concerns with the Plaintiff’s credibility and accepted the Defendant’s testimony. The court found that the Plaintiff abruptly moved into the lane of traffic occupied by the Defendant when it was unsafe to do so, namely when he was stopping for an intersection up ahead. In finding the Plaintiff fully at fault and dismissing the claim Madam Justice Baker provided the following reasons:
 Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident. I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.
 I am unable to conclude that anything done or not done by Mr. Youngson constituted negligence that caused or contributed to the collision. Mr. Youngson testified that as he was approaching the intersection with Clark Drive he anticipated having to bring his vehicle to a stop for a red light. He braked and down-shifted and reduced his speed to 30 to 35 kph as he approached the intersection. He testified that had Mr. Bingul not suddenly moved into his lane ahead of him, he would have able to bring his vehicle to a complete stop at or before the stop line, but that Mr. Bingul’s move reduced his stopping distance to an unsafe degree.
 Mr. Bingul was aware that there was a large and heavy vehicle in the lane. I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.
 I therefore dismiss the plaintiff’s claims against all defendants.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a trip and fall lawsuit where a customer fell on over-lapping mats at a grocery store.
In the recent case (Biason v. Loblaws, Inc) the Plaintiff tripped and fell injuring herself while she walked on overlapping floor mats. She argued that it was negligent for the store to have these mats overlap each other. The Court noted that counsel could not point to other cases addressing such a fact pattern but ultimately found there was no negligence. In dismissing the claim Madam Justice Baker provided the following reasons:
 Mr. Patton testified that he was unaware of any previous incident involving a customer tripping over overlapped mats. Although there was no direct evidence about the depth of the mats, from the description given, and the appearance of the mats on the recording, they were neither deep nor “plushy”. The front end of the third mat that overlapped a portion of the rear end of the second mat was not wrinkled or buckled or folded back or lifting up in any unusual fashion. Part of one mat was simply lying on top of part of another mat.
 There is no evidence that there had been previous accidents due to overlapping mats – the evidence is to the contrary. There is no evidence that the overlapping of mats was a recognized hazard in the industry. Other customers had been walking over the mats without incident on the day that Ms. Biason tripped and fell…
 I have read and considered all the other authorities provided by counsel. Taking the authorities and all of the evidence into account, I have concluded that the plaintiff has failed to establish, on the balance of probabilities, that the placement of the mats in the defendant’s store constituted a failure on the part of the defendant to take reasonable care to ensure that the premises were reasonably safe. The defendant placed the mats in the entryway to protect customers from a readily apparent and recognizable risk – the risk of slips and fall due to wet floors. I am of the view that it was not reasonably foreseeable that a customer would fail to lift his or her feet sufficiently while walking to avoid tripping on the edge of one of the mats, even if those mats were slightly overlapping.
 Having found no breach of the standard of care, and therefore no liability on the defendant’s part, Ms. Biason’s action must be dismissed.
There is a mistaken belief by some that when a collision occurs at an intersection between a left turning motorist and a vehicle proceeding straight through the intersection that fault will rest with the turning vehicle. This is often, but not always, the case.
Reasons for judgement were released today by the the BC Supreme Court, New Westminster Registry, finding a left turning vehicle faultless for such a crash due to excessive Defendant speed.
In today’s case (Theiss v. Shorter) the Plaintiff was attempting a left hand turn on an amber light when she miscalculated the on-coming Defendant’s speed and a collision occurred. The Defendant was travelling at approximately double the posted speed limit and due to this the Court concluded fault should rest entirely with him. In reaching this conclusion Madam Justice Baker provided the following reasons:
 I found the opinions in Mr. Dinn’s report, reinforced by his response to rigorous cross-examination and some questions from the Court, to be logical, reasonable and persuasive, and the assumptions on which he based his opinions to be supported by the evidence. I conclude that Mr. Shorter was travelling at an excessive rate of speed as he approached the intersection − probably a speed in excess of 100 kph and possibly as great as 110 kph − more than twice the posted speed limit.
 Ms. Theiss commenced her left turn when the defendant’s vehicle − had it not been been travelling at an excessive speed − was sufficiently far from the intersection that it did not pose a hazard. She could not, in my view, have anticipated that the approaching vehicle was travelling at twice the posted speed limit. As such, and given that she was well into her turn when Mr. Shorter approached the intersection, he was obliged to yield to her.
 Mr. Shorter knew, I conclude, that the light at Chancellor Avenue for traffic on Helmcken Road had been green almost from the time he entered Helmcken Road and should have anticipated that it would turn to amber or red before he reached the intersection. He also knew that there was a southbound vehicle stopped at the intersection waiting to make a left turn. He was aware there was no left turn light and that vehicles wishing to turn left often did so on an amber light. Had he not been driving at an excessive rate of speed he could have stopped before entering the intersection, or had a greater opportunity to consider his options and to avoid the swerve to the right that was a contributing factor in the collision.
 This is, in my view, one of those rare instances in which the left-turning servient driver is not at fault. Ms. Theiss drove in a prudent and reasonable manner − stopping twice to check the distance from the intersection of the oncoming vehicle; and checking to ensure no pedestrians or cyclists were in the crosswalk. She was familiar with the intersection and able to make a reasonable estimate of when she could safely make it through the intersection before oncoming traffic reached the intersection. She could not reasonably have predicted the highly excessive rate of speed at which I have concluded Mr. Shorter was travelling.
 I find Mr. Shorter’s negligence in driving at an excessive rate of speed and failing to keep a proper look-out for left-turning vehicles to be the sole cause of the accident.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, largely rejecting claimed damages in a personal injury lawsuit due in part to concerns with the Plaintiff’s credibility and further due to Facebook photos entered as evidence at trial.
In the recent case (Brennan v. Colinders) the Plaintiff was involved in a 2012 collision. The Defendants admitted fault. The Plaintiff alleged the collision caused chronic problems which continued up to the time of trial. The Court rejected this finding the collision related consequences had resolved. In awarding $20,000 in non-pecuniary damages Madam Justice Baker provided the following critical comments regarding the Plaintiff’s credibility along with noting the impact of Facebook photos:
 I found, in general, that Mr. Brennan is not a credible witness. He proved to be a very poor historian. While some of the problems with his testimony could perhaps be considered the result of poor memory or carelessness, there were also instances of what I consider to be a failure to respond honestly and truthfully to questions asked; and a tendency, often demonstrated, to shade or colour his testimony in a way he perceived to be helpful to his case. Some of his testimony was contradicted not only by the testimony of defence witnesses, but also by other witnesses called on behalf of the plaintiff. While testifying, Mr. Brennan frequently contradicted himself. He gave different versions of the same events at different times….
 Since March 2012, Mr. Brennan has acquired a new hobby, which, judging by the numerous photographs he has posted on his Facebook page, provides him with considerable satisfaction. Mr. Brennan testified that he obtained a firearms permit and a friend purchased a handgun for him. He has posted numerous photographs of himself in various poses with this weapon.
 Mr. Brennan testified he had attempted camping on one occasion but after one night found sleeping on the ground too uncomfortable. Again, the timing of this attempt was unclear.
 I am prepared to accept that for a short time after the March 2012 accident, Mr. Brennan would have found his usual recreational and social activities less enjoyable than before the accident injuries exacerbated his chronic condition, but that within six months post-accident he was not prevented from participating in the activities to the same extent he had prior to the accident.
 Counsel provided the Court with various authorities: George v. Doe, 2015 BCSC 442; Dhaliwal v. Pillay, 2015 BCSC 509; Graydon v. Harris, 2013 BCSC 182; Kahle v. Ritter, 2002 BCSC 199; Lamong v. Stead, 2010 BCSC 432; Zvatora v. Liberman, 2000 BCSC 306, Friesen v. Fiddler, 2003 BCSC 1955; Dymond v. Wilson, 2001 BCSC 244;Boyd v. Shortreed, 2009 BCSC 1468; and Ryan v. Kakowich, 2011 BCSC 835. None of these authorities deals precisely with the situation of a plaintiff who was already largely incapacitated prior to an accident involving a minor exacerbation of pre-existing debilitating symptoms. I find the range of awards in the cases cited by defendants’ counsel to more closely reflect the facts in this case.
 I award the sum of $20,000 for non-pecuniary damages.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.
In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012. The Defendants admitted fault for both. As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future. The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice. In reaching this assessment Madam Justice Baker provided the following reasons:
 I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident. The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident. She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain. These complaints resolved within a short time. Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.
 I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident. She did not miss work as a security guard after the first accident. She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months. She was sufficiently recovered to travel to India three months after the accident and remained there for about two months. On her return from India she resumed working as a security guard and doing janitorial work. She attempted to return to the Sears job but was not re-hired.
 Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial. Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty. Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.
 The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.
 I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial. Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time. I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength. I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…
 Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted. I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, refusing to award discretionary costs where a defence formal settlement offer was not beat by a plaintiff by an “almost negligible difference“.
In today’s case (Zhao v. Yu) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant issued a formal settlement offer of $93,500. The Plaintiff declined and proceeded to trial where damages of $91,700 were assessed. The Defendant asked for trial costs but the Court dismissed the application finding it was not unreasonable for the plaintiff to reject the offer and proceed to trial. In reaching this decision Madam Justice Baker provided the following reasons:
 While in hindsight the Defendant’s Offer was indeed reasonable, that is not the test. Rule 9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party’s assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable.
 Here, the parties differed, as did some of the expert witnesses, about the Plaintiff’s prognosis; and the extent to which the injuries resulting from the accident, would affect his capacity to earn income in future. While the Plaintiff did not succeed on this issue, I cannot say it was unreasonable for him to pursue the claim; or to believe that there was some prospect of success, even if there was a risk he would not succeed. I note also the Plaintiff’s submission, which I consider persuasive, that even a slightly higher award for special costs or non-pecuniary damages would have resulted in an awarded that exceeded the Defendant’s Offer.
 Having weighed the relevant factors, I am satisfied that this is a case in which I should award the Plaintiff the costs of the entire action, including all steps taken after the date of delivery of the Defendant’s offer, notwithstanding the Defendant’s Offer.
One of the more difficult fact patterns to predict the outcome of is when will a Plaintiff be granted costs when they sue in the BC Supreme Court but are awarded damages below $25,000 (the monetary jurisdiction of the Provincial Court in BC). You can click here to read archived decisions addressing this. Adding to these, reasons for judgement were released this week considering such a scenario.
In this week’s case (Akbari v. ICBC) the Plaintiff was injured in a collision caused by an unidentified motorist. He successfully sued ICBC and was awarded damages of just over $13,000. Following this the Plaintiff sought costs of $17,000. Madam Justice Baker denied this finding the Plaintiff had no sufficient reason to sue in Supreme Court. In reaching this conclusion the Court provided the following reasons:
 I am not persuaded that there was sufficient reason to bring this action in Supreme Court. As the plaintiff submits, the issue of liability was the primary issue at trial. The Provincial Court is an entirely appropriate forum for determining that issue, the outcome of which largely depended on an assessment of the credibility of the witnesses.
 Ms. Berry of ICBC had no personal knowledge of the circumstances of the accident. I can surmise that questions put to her on discovery may have related to contact by ICBC representatives with one of the plaintiff’s witnesses, Mr. Nahun Chinchilla, whose testimony I rejected at trial as incredible and unreliable. Mr. Chinchilla voluntarily contacted both the plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be interviewed by plaintiff’s counsel prior to trial, so it was not necessary to utilize the Supreme Court Rules to compel his cooperation.
 I am not persuaded that any documents and witness statements provided by the defendant to the plaintiff during the course of pre-trial preparation would not have been supplied by the defendant whether the action had been brought in Supreme Court or in Provincial Court.
 I am not persuaded that there was any reasonable prospect that the plaintiff’s total damages would exceed $25,000. The special damages and past loss of income were known. The only head of damages involving uncertainty was non-pecuniary damages. The only medical evidence presented at trial was a report from Mr. Akbari’s family doctor, dated June 2, 2011. In my view, it should have been obvious to the plaintiff and his counsel, after considering that report, that an award in the range of $25,000 was highly unlikely.
 The report and the opinions expressed in it were sufficiently non-controversial that Dr. Rai was not required to attend for cross-examination. In Dr. Rai’s opinion, Mr. Akbari suffered soft tissue injuries – described by Dr. Rai as “tendonious strain” affecting Mr. Akbari’s left calf, knee and thigh – from which he had recovered in 8 to 10 weeks. Mr. Akbari was off work for two weeks, but it was during the Christmas holidays and he had planned to take some vacation during that period in any event. The injuries caused little disruption to Mr. Akbari, only temporarily interfering with his participation in pick-up soccer games, and his weight-lifting routine at the gym.
 In the plaintiff’s written submissions regarding costs, it was suggested that the concluding paragraph of my trial Reasons, in which I stated that I was not aware of any reason why the plaintiff should not have his costs on Scale B, was a determination of the issue. That is not correct. Unless a defendant invokes Rule 14-1, a plaintiff is normally entitled to costs. Once the Rule is invoked, then the court must consider whether there was sufficient reason to bring the proceeding in the Supreme Court.
The plaintiff shall have disbursements only.
A pattern that is sometimes seen with soft tissue injuries is that of significant recovery with a lingering occasional flare up of symptoms. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.
In this week’s case (Lumley v. Balilo) the plaintiff was involved in a 2009 rear end collision. The defendant admitted fault. The Plaintiff suffered soft tissue injuries which largely recovered in 9 months but occasionally flared with activity. In assessing $25,000 for her non-pecuniary damages Madam Justice Baker provided the following reasons:
 I conclude that Ms. Lumley’s injuries did not incapacitate her from work; or from any of the social and recreational activities she enjoyed before the accident, although discomfort in her neck and back caused her to limit her physical activities for a few months following the accident. After a few weeks she stopped using prescription medication and relied on occasional use of an over-the-counter analgesic to manage her discomfort. She had resumed her normal activities by April 2010 – nine months after the accident, although she continued to have stiffness and some discomfort in her neck and muscle tension headaches from time to time. She was able to combine a full-time job with attendance at a part-time college course to become a physical fitness trainer; and began working as a trainer while completing the course, in addition to working full-time at her regular job. Although Ms. Lumley testified that she had not improved at all after terminating physiotherapy treatments in February 2010, I conclude that she has made a significant recovery and that her current symptoms are mild and controlled with only occasional use of a non-prescription pain medication…
 Ms. Lumley is a person who enjoyed a high level of fitness before the accident, and derived an important source of enjoyment and satisfaction from her participation in sports and recreational activities. Ms. Lumley continues to be very fit and active but as a result of the accident, sometimes experiences stiffness or discomfort in her neck; and headaches that her doctor believes are causally related to muscle tension in her neck. While these residual symptoms are not disabling; they do occasionally interfere with Ms. Lumley’s enjoyment of life and in particular, her enjoyment of the sports and athletic endeavours that are so important to her.
 I am not persuaded, however, that the symptoms are likely to persist in any significant way and that the symptoms Ms. Lumley continues to experience are mild and can be managed with the use of non-prescription analgesics.
 I have considered the authorities cited. I award Ms. Lumley $25,000 in damages for pain, suffering and loss of enjoyment of life.
Adding to this site’s archived cases addressing hip fracture non pecuniary awards, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury.
In this week’s case (Dunn v. Lyon) the Plaintiff was injured in a motorcycle collision in 2008. The Defendant was fully at fault for the incident. The Plaintiff suffered from various orthopaedic injuries primarily involving her low back and hip. These went on to pose long term difficulties disabling her from her usual occupation as a server. In assessing non-pecuniary damages at $100,0000 Madam Justice Baker provided the following reasons:
 No medical witness testified at trial and the language used to describe Ms. Dunn’s injuries in the clinical records and in the three expert reports is technical, but counsel agreed that the primary injury can be most briefly described as multiple pelvic fractures. The fractures and other injuries are summarized on page 4 of Ms. Bos’s report as follows:
– left superior and inferior pubic rami
– right pubic tubercle
– left sacral ala
– left L5 transverse process
– widening of the left SI joint
– displaced bony fragment in the left S3 sacra foramina
– right anterior acetabular rim fracture
– haematomata involving piriformis and iliopsoas muscles
 I infer that none of the fractures, although serious, involved significant displacement, as Dr. O’Brian decided surgery was not required. Ms. Dunn was admitted to an orthopedic ward for bed rest although permitted to sit up in a chair provided that she did not put weight on the left side of her pelvis. Her pain was treated with a variety of drugs, including Morphine with Gravol, Oxycodone and Tylenol…
 Not unexpectedly, Ms. Bos’s opinion is that Ms. Dunn does not have the capacity to work either as a waitress or a janitor due to limited standing tolerance, decreased walking speed and limited stooping/bending tolerance. Her primary limitation, according to Ms. Bos, is “standing/weight bearing tolerance”. Ms. Bos’s opinion is that Ms. Dunn would benefit from vocational testing and assistance with job search…
 Having considered the authorities referred to and comparing the situations of the plaintiffs in those cases to that of Ms. Dunn, I award $100,000 for non-pecuniary damages.