Tag: Madam Justice Dillon

Cyclist Struck in Marked Crosswalk Found 100% at Fault for Crash

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving a cyclist struck by a vehicle.

In today’s case (Dhanoya v. Stephens) the Plaintiff cyclist rode into a marked crosswalk without stopping and was struck by a vehicle.  The Court found the cyclist was fully at fault for the collision and had the cyclist kept a proper lookout the collision could have been avoided.  In finding the cyclist solely liable Madam Justice Dillon provided the following reasons:

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Court Orders ICBC Disability Benefits Paid Despite Delayed Application

Earlier this year the BC Court of Appeal found that ICBC wage loss benefits can be ‘revived’ if a collision related injury which was initially disabling retriggers disability beyond the 104 week mark.  This week a BC Supreme Court judgement confirmed this principle ordering the insurer to pay years of backdated benefits.
In this week’s case (Powell v. ICBC) the Plaintiff was injured in a collision and wad disabled for about a month following the collision.  She returned to work and pressed on until she could no longer continue several years later due to the lingering effects of her collision related injuries.  She applied for ICBC’s disability benefits but was denied with the insurer arguing that she was not longer entitled.
In finding the Plaintiff qualified for benefits under the policy and further that benefits can be revived past the 104 week mark Madam Justice Dillon provided the following reasons:

[51]         This judgment was upheld in Symons where the issue on appeal was whether the chambers judge erred in concluding that Mrs. Symons was entitled to disability benefits under s. 86 of the Regulation. ICBC argued that an insured must have an ongoing disability and be receiving benefits at the end of the 104 week period in order to receive benefits. Because Mrs. Symons was not receiving benefits at the end of the 104 week period and because her disability did not flare up until after that period, the Regulation did not permit for the reinstatement of s. 86 benefits. The plaintiff urged a contextual and purposive approach to statutory interpretation of s. 86 that would not result in absurd results as urged by ICBC.

[52]         Bennett J.A., for the Court, found at para. 17 that the regulations in question should be considered in the context of the legislative scheme to provide universal, compulsory insurance and access to compensation for those who suffer losses from motor vehicle accidents. Benefits-conferring legislation is to be interpreted in a broad and generous manner (at para. 18). The Court concluded at para. 24:

[24] Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act – to provide no-fault benefits for persons injured in motor vehicle accidents.

[53]         The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident…

[62]         After consideration of all of the evidence, it is concluded that the plaintiff has established entitlement under s. 86(1) of the Regulation.

Double Costs Ordered For Unreasonable Response to "Notice to Admit"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry finding defendants at fault for a vehicle collision and further ordering double costs to be paid following an ‘unreasonable’ refusal to admit facts set out in a notice to admit.
In today’s case (Ceperkovic v. MacDonald) the Defendants were sued for a three vehicle collision that they were ultimately found liable for.  Prior to trial they were served with a Notice to Admit seeking admission of various facts regarding the circumstances of the crash.  The Defendants did not admit all of these facts requiring ultimate proof at trial.
In finding the refusal was unreasonable and ordering double costs Madam Justice Dillon set out the following test to be utilized in these circumstances along with the following reasons:

[38]         In summary, the failure to admit the truth of a fact may be unreasonable within the meaning of Rule 7-7(4) if:

(a)      the truth of the fact is subsequently proved;

(b)      the fact was relevant to a material issue in the case;

(c)      the fact was not subject to privilege;

(d)      the notice to admit was not otherwise improper;

(e)      the notice to admit was reasonably capable of evaluation within the time required for response; and

(f)       the refusing party had no reasonable grounds for believing that it would prevail on the matter.

[43]         While the cost consequences of an unreasonable failure to admit are usually confined to the costs of proving the truth of facts or the authenticity of documents, the power conferred by Rule 7-7(4) to penalize a party by awarding additional costs or depriving a party of costs “as the court considers appropriate” suggests that in an appropriate case the court could go further. At the least, it is not outside of contemplation that if the entire trial could have been avoided had reasonable admissions been made (for example, if the originating party could have applied for judgment on admissions under Rule 7-7(6)), the party who unreasonably failed to admit the facts could be penalized by an award of additional costs for all steps taken following delivery of the notice to admit.

[44]         Here, the plaintiff bus driver would not have had to lead any evidence and would not have had to cross-examine other parties or witnesses if the facts had not been unreasonably denied. Other than perhaps being called as a witness in the Ceperkovic action, Patriquin would not have had to appear. An award of double costs against the defendants, MacDonald and Janet MacDonald, for trial preparation, attendance at trial and written argument and an award of ordinary costs for time spent in preparing Patriquin for testimony is very reasonable. The plaintiff, Patriquin, is awarded those costs pursuant to Rule 7-7(4).

$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.
In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision.  The Defendant admitted fault.  The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman.  In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:

[30]         The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.

[31]         Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.

[32]         Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.

[33]         Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…

[35]         It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…

[44]         The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.

[45]         Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.

[46]         Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.

[47]         An appropriate award for non-pecuniary damages in this case is $110,000.

$20,000 Non-Pecuniary Assessment For Modest and Lingering Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries sustained in a collision.
In today’s case (Hall-Smith v. Yamelst) the Plaintiff was involved in a so called ‘low velocity’ collision in 2009.  Fault was admitted by the offending motorist.  The Plaintiff alleged she sustained fairly serious injuries from the collision with detrimental consequences.  The Court had issues with the Plaintiff’s credibility but did accept the collision caused some level of lingering injures.  In assessing non-pecuniary damages at $20,000 Madam Justice Dillon provided the following reasons:

[50]         The plaintiff lacked credibility about the nature of her injuries. The physical complaints were out of proportion to the severity of the accident. While this court appreciates that not all plaintiffs respond the same way to a minor incident and that a minor accident does not in itself define injury, this plaintiff’s response was so unrealistic as to affect credibility. The plaintiff was vague or could not remember when asked about post-accident activities in cross-examination and her answers were contrary to other witnesses. The documentary evidence that the plaintiff completed herself in April and May 2009 belied the suggestion that she was still considerably disabled from injury sustained in the accident or that she was suffering back and knee pain. ICBC and Turning Point documents completed by the plaintiff mentioned only pain in her neck. She misled Mr. Nordin by attributing her relapse back into drugs shortly after the accident as due to taking prescribed medication, by implying that her UBC employment was permanent and that she left due to increased back pain, and by telling him that she left the licensed practical nurse programme due to back pain and financial difficulty.

[51]         The preponderance of medical opinion does not find that knee or groin pain was caused by the accident. The plaintiff’s fiancé was unaware of any knee pain.

[52]         It is accepted that the plaintiff suffered soft tissue injury to her neck and mid back as a result of the accident. Dr. O’Connor also said initially that she suffered exacerbation of a pre-existing degeneration of the spine that caused low back pain that had not existed prior to the accident. However, the doctor changed this view when faced with the suggestion of no complaint of back pain until the plaintiff saw Dr. Harjee in October 2009 and the plaintiff’s failure to report back pain in important documentation in April and May 2009. In these circumstances that were brought to Dr. O’Connor’s attention, he concluded that the farther the low back pain complaint was from the accident, the less likely that it had been caused by the accident. But, the plaintiff had reported back pain in her first visit to the doctor immediately after the accident. In this circumstance, Dr. O’Connor’s initial opinion still prevails and it is accepted that the plaintiff suffered exacerbation of her pre-existing degenerative condition as a result of the accident and began to have pain in her lower back that did not exist prior to the accident. In any event, the injury to the plaintiff’s neck and back had largely resolved by the time that the plaintiff saw Dr. O’Connor in December 2011. At that time, any residual pain was as a result of the exacerbation of the pre-existing degenerative disc condition and heightened pain from chronic anxiety unrelated to the accident. The plaintiff would have suffered back pain at an early age eventually in any event of the accident. In all of the circumstances, it cannot be concluded that all of the plaintiff’s present symptoms are as a result of the accident. The prognosis of Dr. O’Connor is accepted, however, so that at least a small part of her ongoing back and related pain is attributable to the accident and there is no prospect for resolution with time.

[53]         Despite her injuries, the plaintiff was able to enter and succeed in a rehabilitation programme for the first time within two months of the accident. She felt sufficiently secure in her physical wellbeing to engage in dodgeball and other activities. She was able to work at a shoe store where she maintained part time employment for the first time. She completed a nine month medical office assistant programme that was rigorous in time demands. She was able to get work as a medical office assistant but did not keep the work for reasons that were not related to injury from the accident. She eventually found employment suited to her and has successfully worked full time since June 2014. Given the plaintiff’s pre-accident background and her dependence upon social assistance due to chronic anxiety, she has done quite well since the accident despite injury. The plaintiff has managed despite the injuries. From all of this, the nature of the injuries suffered in the accident, and the existence of other non-accident related physical ailments, it is concluded that the injuries suffered in the accident were relatively minor and did not prevent the plaintiff from establishing herself away from a troubled past…

[55]         It is important to remember that non-pecuniary damages are awarded to compensate an individual for the pain, suffering and loss of enjoyment of life and loss of amenities caused by the accident and that the compensation awarded should be fair and reasonable to both parties (Miller v. Lawlor, 2012 BCSC 387 at para. 109 (Miller)). The fact that this was a low velocity collision does not rule out injury (Dao v. Vance, 2008 BCSC 1092 at para. 19; Naidu v. Gill, 2012 BCSC 1461 at paras. 33-34). The inexhaustive list of factors to be taken into account in the assessment of non-pecuniary damages is well established as listed in Miller at para. 105 and Buttar v. Brennan, 2012 BCSC 531 at para. 35. These factors have been considered in coming to the conclusion here.

[56]         The plaintiff had substantially recovered from the effects of the accident by December 2011 when she first saw Dr. O’Connor, except for aggravation of the pre-existing degenerative disc disease. The impact of the accident upon the life of the plaintiff was not significant. She was able to recover to the extent that only her neck pain was worthy of her comment by the spring of 2009. She was able to rehabilitate and educate herself for the first time. She was able to start serious work and eventually get and maintain full time employment that she never had before. She started and has maintained a stable family life. As in Sevinski v. Vance, 2011 BCSC 892 at para. 84, it not possible to determine here the extent of the plaintiff’s participation in sports and other activities prior to the accident based upon her evidence and prior lifestyle. There is no evidence of prior regular participation that was hindered by the accident.

[57]         The plaintiff is awarded $20,000 for her non-pecuniary damages.

$90,000 Non-Pecuniary Assessment For Chronic Migraine Headaches

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic migraine headaches along with a low back injury caused by a collision.
In today’s case (MacDonald v. Joseph) the Plaintiff was injured in a 2011 head on collision caused by the Defendant.  The Plaintiff suffered a variety of injuries, some of which recovered but was left with a legacy of chronic migraine headaches and low back pain.  In assessing non-pecuniary damages at $90,000 Madam Justice Dillon provided the following reasons:

[21]         The plaintiff had substantially recovered from the accident after 18 months but he continued to suffer and continues to suffer accident caused symptoms related to migraine headaches, lower back pain and occasional neck pain. The headaches suffered as a result of the accident are of a different nature and consistency than any headaches before the accident which dated back to 2009 and were not medically treated. The treatment for chronic headache related to head and neck trauma is difficult and often unhelpful, according to Dr. Robinson who considered that the plaintiff was not a candidate for preventative medications. He expected the plaintiff to have recurring headaches for the next three to five years with a definite risk for persisting headaches indefinitely. These would not be expected to be a “substantial impediment” in continuing with the plaintiff’s janitorial career.

[22]         Decisions in similar cases presented by counsel suggest a range for the non-pecuniary damages suffered by the plaintiff from $55,000 to $100,000. In my view, the plaintiff here suffers headaches more frequently at present than the plaintiff in Sandhu v. Gabri, 2014 BCSC 2283. The nature of his job doing heavy physical work places him in a more precarious position at work than the plaintiff in Rutledge v. Jimmie, 2014 BCSC 41. The plaintiff was off work for a considerably longer period than the plaintiff in Wepryk v. Juraschka, 2012 BCSC 974. At the same time, the plaintiff is not in constant pain as was the plaintiff in Smith v. Fremlin, 2013 BCSC 800 and has not developed psychological or pain disorders as a result of the accident as the plaintiff did in Roth v. Hes, 2015 BCSC 161. Nonetheless, the plaintiff’s prognosis of persisting debilitative headaches into the future with unresolved low back and neck pain more than four years after the accident place him at the higher end of the range. Non-pecuniary damages are awarded in the amount of $90,000.

Deep Sea Terminal Negligent After Failing To Warn User Of Automated Gangway

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding Prince Rupert Grain Ltd. (PRG), who operated a deep sea terminal, negligent for failing to meaningfully warn the Plaintiff about an automated gangway.
In the recent case (Ranjabar v. Islamic Republic of Iran Shipping Lines) the Plaintiff was a cook on a foreign commercial vessel.  It docked at the Defendants deep sea terminal.  After a brief time at shore, as the Plaintiff was attempting to board the vessel, the automated gangway lifted and the Plaintiff fell onto the ship below fracturing his femur.
The Defendant PRG was found liable with the court finding the gangway was “both unusual and dangerous“.  The court noted that the English language warning signs were insufficient notice of this danger in the circumstances where occupants of foreign vessels were expected to encounter it.
At paragraphs 81-101 the Court sets out a lengthy list of applicable legal principles in occupiers liability cases concerning the use of a gangway.  In finding PRG liable Madam Justice Dillon provided the following reasons:
[104]     Did the gangway pose an unusual danger? Yes, it did. The automatic gangway was both unusual and dangerous. It was unusual because none of the seamen who testified, including Ranjbar, Salmannia and Malayeri, had ever seen such a gangway in all of their combined years at sea around the world. Usually, a ship (and certainly the Iran Mazandaran) used its own gangway to access a terminal. Usually, it was continuously monitored and operated manually. Based upon this evidence, it is concluded that the average crew member would not have expected the gangway to rise automatically, especially with someone on it. Salmannia thought that “automatic” meant that the ladder remained at all times on the ship deck. The alarm cycle and sequence before lifting of the gangway was both unusual and dangerous if not known. None of PRG’s personnel who testified could interpret the record of the alarm sequence exactly and could not explain why or when the sequence was altered from the original operations manual. It was not obviously visually apparent to either Ranjbar or to Salmannia that the gangway automatically lifted…
[107]     PRG acknowledged this danger by placing the signs and using the horn to warn of danger from movement of the automatic gangway if someone was on it. Whether they were adequate is another question. The assistant maintenance superintendent for the terminal admitted that the gangway was dangerous, especially if one was on the ladder when it lifted. He had never attempted to experience the ladder when the gangway lifted because of the danger…
[113]     Did the failure of PRG to adequately warn of the danger cause Ranjbar to fall from the ladder? The answer is yes. If Ranjbar had known that the gangway would lift automatically, raising the stepladder off of the deck of the ship, he would not have waited while he threw down the backpack to Heidar and then proceed down the ladder. Heidar did not change his conduct as a result of the signs or horn, indicating that he, too, did not appreciate the danger. When the gangway started to lift, Ranjbar did not know what was happening and did not know what to do. Even if he had seen them, the warning signs were inadequate to transmit the danger to him. Ranjbar was aware of dangers generally at the terminal and took care, but relied upon others to inform him about specific dangers. He was a new visitor to this terminal and was given a security pass, but was not told anything about this gangway. The nature of the gangway as automatically lifting regardless that someone was on it was not obvious. It cannot be said in all of the circumstances that the plaintiff’s misunderstanding of the signs and horn was the cause of his injury…
[117]     In conclusion, following careful consideration of all of the facts and the guidance of the law, PRG is 100% liable for the injuries caused to the plaintiff.

Practice Tip From the Bench: Don't Unilaterally Schedule Hearing Dates


While it is possible for litigants to unilaterally schedule matters under the BC Supreme Court Rules, such a practice is discourteous and not warmly received by the judiciary.  Earlier this year I highlighted judicial criticism of a unilaterally scheduled examination for discovery.  I have recently been provided with unreported reasons for judgement criticising this practice in the context of a scheduled summary trial.
In the recent case (Lumley v. Balilo) the Plaintiff was injured in a motor vehicle collision.  Prior to trial the Defendant scheduled a summary trial application with a unilaterally selected date.  The Plaintiff objected to this practice and further to the merits of the attempt to dispose of the claim summarily.  The Court ultimately dismissed the application on the merits but prior to doing so Madam Justice Dillon provided the following practice advice to counsel considering unilaterally set dates:
[14]  …I consider that the date was unilaterally set, it being the focus of this court under the new rules to encourage direct discussion between counsel with respect to such matters as setting dates and other things so that it does not come for argument as it has today before this court.  So that is a practice point to bring to the attention of counsel, which is certainly not determinative of my disposition of the matter today but as a matter of practice counsel should discuss between themselves available dates.
To my knowledge this recent case is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

More on Part 7 Medical Exams Barring Tort Exams

As previously discussedICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an insured applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.
In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision.  In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon.  In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon.  The Plaintiff opposed this.  ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam.  In dismissing the Application Master McCallum provided the following reasons:
[8]  The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it.  It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report.   Dr. Dommisse did not have access to the pre-accident clinical records.  However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…
[10]  Dr. Dommisse went through the examination and gave his opinion.  His opinion is not qualified in any way.  He does not suggest that there is more information he needs.  He makes no recommendaiton for treatment.  There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.
[11]  The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for.  The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing.  Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…
[15]  In those circumstances the defendant’s application is dismissed.
In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.
The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.

The Significant Role of Expert Evidence in Personal Injury Trials

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

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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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