Tag: Madam Justice Dickson

Fault For Right Hand Turning Vehicle Striking Cyclist Discussed by BC Supreme Court

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision involving a right hand turning vehicle and a cyclist attempting to pass the vehicle on the inside lane.

In this week’s case (Nelson v. Lafarge Canada Inc.) the Plaintiff was “cycling hard and fast alongside the Truck as the two approached the Intersection in tandem.  Mr. Nelson’s speed exceeded the Truck’s and it is apparent he was overtaking it on the right as the Truck turned onto Nanaimo.”  There was video of the actual collision presented in evidence and it demonstrated that the Truck driver “did engage the Truck’s right signal prior to executing his right turn onto Nanaimo.  I accept that he did so well before he arrived at the Intersection after the light had turned green.”
As the truck turned, on a still green light, a collision occurred.  Madam Justice Dickson found both parties to blame for the collision with the cyclist bearing 65% of the fault.  In reaching this concluding the Court provided the following reasons:
[77]         I agree with counsel for the defendants that Mr. Conarroe was the dominant driver in the circumstances of this Accident.  He was proceeding on a green light in the appropriate lane and had signaled his right turn well in advance.  He had also looked around as he turned onto Nanaimo and, generally speaking, was entitled to assume that others would obey the rules of the road.  Nevertheless, the presence of cyclists in the adjacent curb lane was both proper and predictable.  In addition, I have found Mr. Conarroe could and should have kept a more vigilant look-out in the period leading up to the right turn to ensure that it could be safely made.
[78]         Had Mr. Conarroe kept a more vigilant look-out after he stopped for the red light on Hastings and before he started his right turn he would have observed Mr. Nelson cycling hard and fast in the curb lane behind or beside him.  It would have been apparent that Mr. Nelson was focusing straight ahead and might attempt to overtake on the right as the two approached the green light, despite the riskiness of such conduct.  Armed with this knowledge, Mr. Conarroe could have avoided the Accident by waiting to commence his turn in the Intersection until it was clear either that Mr. Nelson had abandoned the unfolding attempt to pass on the right or completed it successfully.  His failure to do so was a failure to take reasonable care and a contributing cause of the Accident.
[79]         Mr. Nelson also failed to take reasonable care for his own safety, which failure was a contributing cause of the Accident.  Although, based on Jang, I find that the curb lane was a through lane for cyclists I also find it was unsafe for him to attempt to pass the right-turning Truck when there was little, if any, margin for error associated with such an attempt.  As noted, this was a breach of s. 158(2)(a) of the Act.  It also fell well below the standard of care to be expected of a reasonably competent cyclist in all of the circumstances.
[80]         Mr. Nelson suffered serious harm and damage as a result of the Accident.  The damage has two proximate causes:  the negligence of both parties.  In these circumstances, liability must be apportioned between the two.
[81]         In assessing the respective fault and blameworthiness of the parties I must evaluate the extent or degree to which each departed from the standard of care owed under the circumstances.
[82]         In balancing blameworthiness, I find Mr. Nelson’s conduct constituted a significant departure from the requisite standard of care which created a risk of serious harm.  He was aware of the Truck travelling eastbound on his left but focused only on his own path forward and did not check for an activated right turn signal, which was there to be seen.  Instead, he tried to pass the Truck on the right without first determining whether such a movement could be made safely.  In my view, such conduct was very careless.
[83]         Mr. Conarroe’s conduct also constituted a significant departure from the requisite standard of care, taking into account the vigilance reasonably to be expected of a professional truck driver.  He waited far too long to look carefully and thoroughly around himself as he prepared to turn right.  This is particularly true given his knowledge of the Truck’s many blind spots.  In consequence, Mr. Conarroe was unaware of the fact that Mr. Nelson was cycling hard and fast in the adjacent curb lane after the light changed colour at the Intersection.  This failure was not momentary or minor, and it carried the risk of foreseeable harm of considerable magnitude.  In my view, however, it was not of the same degree as Mr. Nelson’s failure to take reasonable care for his own safety in attempting to pass a right-turning Truck on the right.
[84]         In all of the circumstances, I conclude that 65% of the fault for the Accident should be borne by Mr. Nelson and 35% should be borne by Mr. Conarroe.

$100,000 Non-Pecuniary Assessment For Multi Level Disc Herniations

Adding to this site’s archives addressing non-pecuniary damages for spine injury cases, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In the recent case (Tabet v. Hatzis) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk.  He suffered a variety of injuries the most serious being multi level disc herniations in his low back which went on to cause chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Dickson provided the following reasons:
[47]         The defence does not challenge most of the expert evidence presented by Mr. Tabet regarding his accident-related injuries.  In summary, he has been diagnosed by Dr. Sahjpaul, a neurosurgeon, as suffering from low back pain; myofascial and discogenic neck pain; myofascial left leg symptoms, radicular and discogenic; and concussion, resolved.  Dr. Sahjpaul also diagnosed left arm symptoms, but the etiology of those symptoms is uncertain.  In addition, Mr. Tabet has been diagnosed by Dr. Chernick, a psychiatrist, as suffering from depression.  Other than the left arm symptoms, I accept that these conditions are causally connected with the accident.
[48]         According to Dr. Sahjpaul, a September, 2007 post-accident CT scan demonstrated a left L4-5 disc herniation and a broad based L5-S1 disc bulge.  Subsequent investigations demonstrated the L5-S1 disc bulge has also become herniated.  Unfortunately, Mr. Tabet’s prognosis for complete recovery from associated symptoms is not favourable.  While it is possible that his left leg symptoms will improve somewhat it is unlikely that his back pain and neck pain will improve substantially, even with surgery…
[76]         There is merit in both submissions made by counsel.  Mr. Tabet’s physical and emotional suffering is significant and his overall enjoyment of life has been seriously compromised.  Nevertheless, he has pushed himself hard and his work regimen reflects both a choice on his part and stoicism.  Taking into account all of the facts summarised above, I conclude that an award of $100,000 in non-pecuniary damages is appropriate in all of the circumstances of the case.

BC's New Rules of Court Don't Trump Solicitor's Brief Privilege

Earlier this year I highlighted two  judgements (here and here) discussing that the New Rules of Court don’t allow the Court to override solicitor’s privilege.  Further reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Nowe v. Bowerman) the Plaintiff was injured in a 2008 motor vehicle collision and sued for damages.  The Defendant set down a Case Planning Conference asking for an order that “Plaintiff’s counsel advise the defence of the areas of expertise of his proposed experts“.
Madam Justice Dickson dismissed this request finding it would infringe on solicitor’s brief privilege.  In doing so the Court provided the following reasons:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts.  In this case, however, I am unable to identify such a compelling reason.  In these circumstances, I decline to make the order sought.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$60,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries and Recovered Head Injury

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing damages for lingering soft tissue injuries and a recovered mild traumatic brain injury.
In yesterday’s case (Hardychuk v. Johnstone) the Plaintiff was injured in a 2006 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff alleged that she suffered a permanent brain injury which resulted in significant incapacity seeking damages well over 2 million dollars.  While the Court rejected much of this claim Madam Justice Dickson was satisfied that the Plaintiff suffered lingering soft tissue injuries and a recovered traumatic brain injury in the crash.  In assessing non-pecuniary damages at $60,000 the Court provided the following reasons:
[162]     I have found that Ms. Hardychuk suffered soft tissue injuries to her neck, shoulders and back in the accident.  After a two-year process of gradual recovery, these injuries left her with residual symptoms of back discomfort, occasional flaring pain and periodic headaches.  Ms. Hardychuk also suffered post-traumatic stress disorder and a mild traumatic brain injury as a result of the accident.  The symptoms of her post-traumatic stress disorder are well encapsulated, resolving and non-debilitating.  The mild traumatic brain injury caused Ms. Hardychuk to suffer cognitive deficits for several months but those symptoms have now fully resolved.
[163]     As a result of her ongoing soft tissue injury symptoms Ms. Hardychuk experiences pain, frustration, and fatigue, but not a mood disorder or cognitive deficits.  Her vocational, home and recreational activities have been somewhat modified, but she has not been rendered sedentary or unemployable.  As discussed below, her decision to leave her cabinetmaking job in 2010 is not causally related to the accident, nor is her state of depression.  The prognosis for further improvement in her ongoing accident-related symptoms is good, but she may never recover fully.
[164]     Before the accident, Ms. Hardychuk was an extraordinarily athletic and physically-oriented young woman.  Vigorous, enthusiastic, unimpeded physical activity in her work and recreational pursuits was, for her, a major pleasure in life.  For this reason the compromise to her physical state and activities caused by her ongoing symptoms, while not highly debilitating, represents an unusually significant loss for which she is entitled to be fully compensated.  That being said, her loss is not nearly of the nature or magnitude of those addressed in the cases cited by her counsel.  It is, however, somewhat greater than those addressed in the cases cited by counsel for the defence.
[165]     All things considered, I conclude that an award of $60,000 in non-pecuniary damages is appropriate in the circumstances of this case.

$200,000 Non-Pecuniary Damage Assessment for "Complicated" Traumatic Brain Injury

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, assessing global damages at $836,000 for injuries and loss flowing from a motor vehicle collision.
In last month’s case (Gilbert v. Bottle) the Plaintiff was a passenger in the Defendant’s vehicle.  His careless driving caused the vehicle to lose control ejecting the Plaintiff from the vehicle.  She sustained numerous physical injuries the most significant of which was described as a ‘complicated‘ traumatic brain injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Madam Justice Dickson made the following findings:
190] I conclude that Ms. Gilbert suffered a complicated mild traumatic brain injury with significant and permanent sequelae as a result of the accident…
[191] I also conclude that the change in Ms. Gilbert’s substance abuse pattern is substantially connected to her brain injury symptoms.  Dulling physical and emotional pain with crack cocaine shows markedly poor judgment and poor self-control.  Ms. Gilbert’s already inadequate functioning in these areas has been further compromised by her injuries.  In consequence, her substance abuse problem has altered in a significantly negative way…
[195] I further conclude that Ms. Gilbert suffers from chronic pain disorder as a result of the accident.  The pain includes frequent neck, shoulder and back pain, together with cervicogenic headaches which originate from soft tissue injuries to her neck.  I am satisfied that her pain is genuine in the sense that it is not feigned or goal-directed, although it has a significant psychological, as well as physical, component.  In particular, Ms. Gilbert’s pre-existing emotional vulnerability and increased emotional disturbance caused by her brain injury are both substantially connected to the severity and maintenance of her ongoing pain.  The onset of the pain is a result of the accident…

[198] The extent of Ms. Gilbert’s loss due to her accident-related injuries is substantial.  She is, in my view, a thin skull plaintiff.  Before the accident, she lived a borderline existence due to her harsh environment, disorganized lifestyle and poor general health and habits.  As Dr. Travalos points out, however, she was nonetheless able to work with New Directions.  She was also able to participate in and enjoy intimate personal connections.

[199] As a result of the accident, Ms. Gilbert can no longer do either.  In effect, she has lost the two major sources of pleasure, purpose and meaning in an already difficult life.

[200] Ms. Gilbert is and will probably remain competitively unemployable due to the effects of her traumatic brain injury.  Although her post-accident functional change is more substantial than Dr. Travalos assumed, I accept his view that her injuries tipped her over the edge in a vocational sense.  I also accept that Ms. Gilbert’s quality of life may improve with appropriate support and treatment.  I am satisfied, however, that, even with support, she will probably never work for pay again…

[220] I conclude that an award of $200,000 in non-pecuniary damages is appropriate in all of the circumstances.  Ms. Gilbert’s permanent loss of capacity to work and engage emotionally with others is a great loss given their central significance in her difficult life.  In my view, Ms. Gilbert’s consequent need for solace is also great.  Nevertheless, she is entitled to compensation for only the change to her original position.  The award should not extend to her pre-existing difficulties that would have persisted or deteriorated further regardless of her injuries.  In other words, the award must be fair and reasonable to both parties.

More on ICBC Claims and the Seatbelt Defence

(Image via Wikimedia)
As I wrote in one of my first blog posts in 2008, failing to wear a seatbelt can reduce the level of compensation an otherwise faultless accident victim is entitled to in their personal injury claim.  However, this reduction does not flow automatically by failing to wear a seatbelt.  The Defendant still bears the burden of proving that it was unreasonable in the circumstances not to wear a seatbelt and further that injuries would have been lessened with proper seatbelt use.  Absent such evidence a Plaintiff’s compensation will not be reduced.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Gilbert v. Bottle) the Plaintiff was involved in a single vehicle collision in 2005.  She was a passenger in the Defendant’s vehicle.  She occupied the back seat between another passenger and a baby seat.  Both seatbelts available in the back were inaccessible given this position as one seatbelt was affixed to the baby seat and the other was located where the other passenger was seated.  The Plaintiff could have removed the affixed seatbelt herself (as the babyseat was unoccupied) but she did not do so.
The driver was “impaired by alcohol when he approached a corner too quickly and lost control of the vehicle“.  The Plaintiff was ejected.  She suffered severe injuries including a complicated traumatic brain injury.
ICBC presented evidence that the Plaintiff’s injuries would have been reduced with proper seatbelt use and argued that the Plaintiff’s damages ought to be reduced.  Madam Justice Dickson rejected this argument and did not accept ICBC’s expert’s opinion (the Court’s discussion of this can be found at paragraphs 44-48 of the judgement).  Madam Justice Dickson made the following findings and provide the following discussion canvassing this area of law:
[24] A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts.  If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence.  Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent: Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v. Henderson, 2005 BCSC 609…

[52] Defence counsel also submits that Ms. Gilbert contributed negligently to her own injuries by agreeing to ride as a passenger in a position not equipped with an available seatbelt.  He says the circumstances are similar to those in Thon and, had Ms. Gilbert exercised reasonable care, she could have avoided her injuries entirely by not assuming the risk of riding in the middle backseat.  On this analysis, it is unnecessary to consider the extent to which proper seatbelt use would have avoided or reduced her injuries.  If, however, such an analysis is required he says, based on Mr. West’s evidence, those injuries caused by ejection from the vehicle could have been avoided.  He concedes that, on a Thon analysis, an apportionment in the 10% range would be appropriate.

[53] Despite his able submission, I cannot agree with defence counsel.  In my view this case is not analogous to Thon, which concerned plaintiffs who knowingly rode in an area of a vehicle not equipped with seatbelts (having done so in the same area earlier in the day).  In this case, the backseat of the Capri was equipped with two seatbelts but one was affixed to the baby seat and the other was located in the position occupied by Mr. Wycotte.  Ms. Gilbert was unaware of this situation until after she got in the car and, by that time, Mr. Bottle had pulled away.  Thereafter, her attempts to access the seatbelt used by the baby seat were unsuccessful, as were her attempts to persuade Mr. Bottle to stop the car and let her out.

[54] In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri.  It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety.  In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.

[55] If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal.  Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care.  Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct.  In these circumstances, at most I would have assessed her contributory negligence at 5%.

Why Having the Right of Way is Not Always Enough


I’ve previously written that having the right of way is not always enough to escape blame for a motor vehicle collision.  Reasons for judgement were released today further demonstrating this point.
In today’s case (Hmaied v. Wilkinson) the Defendant was driving up a windy road in Port Moody, BC.  At the same time the Plaintiff, then 15 years old, was jaywalking in front of the Defendant.  The Plaintiff was “jogging slowly as he crossed the road“.
The Defendant was speeding.  He saw the Plaintiff jaywalking but “continued to drive at an excessive rate of speed directly toward (the Plaintiff)“.  The Plaintiff crossed beyond the Defendant’s lane of travel.  Unfortunately he dropped his cell phone and “instinctively turned back into the (defendant’s) lane and bent over to pick it up without looking in the direction of oncoming traffic”  As he straightened up after picking up his phone he was struck by the Defendant’s vehicle.
Despite having the right of way, the Defendant was found 50% at fault for the crash.  In coming to this finding Madam Justice Dickson provided the following reasons:

[34] I conclude that the plaintiff and the defendant both failed to exercise due care in all of the circumstances and that both failures were proximate causes of the Accident.  In my view, the parties are equally blameworthy and liability should be apportioned on a 50% basis to each of them.

[35] The defendant had the right of way, but he did not take reasonable precautions in response to the obvious hazard presented by a young person jaywalking across his path of travel.  I accept that he could not specifically foresee the plaintiff would drop his cell phone and move back into the middle eastbound lane in order to retrieve it. I do not accept, however, that he was entitled to assume the plaintiff would obey the rules of the road or otherwise behave in a predictable manner as he jogged diagonally across Clarke Road.  On the contrary, the defendant knew that the youthful plaintiff was behaving unsafely by jaywalking in the face of oncoming traffic.  In these circumstances, other forms of unsafe behaviour were predictably unpredictable and the defendant should have slowed down and changed lanes immediately when he saw the plaintiff.  Had he done so, the Accident would not have happened:  Nelson (Guardian ad litem of), supra; Ashe, supra; Claydon, supra; Karran, supra; Beauchamp, supra.

[36] The plaintiff also failed to exercise due care for his own well-being.  He jaywalked in the face of oncoming traffic and, mid-course, turned back to retrieve his cell phone without checking to see how close the approaching vehicles had come.  In so doing, he exposed himself to the risk that he would be struck by an approaching vehicle.  That risk was realised and his negligent actions were also a proximate cause of the Accident.

If you have the right of way but know that someone is failing to yield you must take reasonable steps to avoid a potential collision otherwise you can bear some of the blame.

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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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