Tag: Madam Justice Fisher

$90,000 Non-Pecuniary Damages for Subcapital Hip Fracture Requiring Replacement

Written by admin on January 3, 2011. Posted in ICBC Hip Injury Cases, Occupier's liability claims, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, awarding damages for injuries sustained in a trip and fall incident.
In last week’s case (Etson v. Loblaw Companies Limited) the 76 year old plaintiff tripped and fell over a wooden pallet in an aisle while shopping at the Real Canadian Superstore. The Court found that both the Plaintiff and Defendant were equally at fault for the incident.
The Plaintiff sustained a subcapital fracture to her right hip. Initially this was treated with internal fixation although the Plaintiff’s pain continued. She eventually required a total hip replacement following which she recovered reasonably well. Madam Justice Fisher valued the Plaintiff’s non-pecuniary damages at $90,000 and in arriving at this figure the Court provided the following reasons:

[61] Ms. Etson was quite reserved in her descriptions of the pain she experienced as a result of her injuries but there is no question that she suffered a tremendous amount of pain. The initial injury was obviously very painful and it took Ms. Etson about four months to begin to resume her mobility sufficiently to be able to drive and do things for herself. She suffered a debilitating set-back in August 2009 when the hardware failed and the femoral head in her hip collapsed. Her mobility deteriorated and she was again unable to do things for herself. She suffered tremendous and increasing physical pain for about eight months. She underwent two additional surgeries. The first, in January 2010, did not alleviate her pain or improve her mobility. She did not experience any relief from the pain until April 2010 when she had the total hip replacement surgery.

[62] Ms. Etson had been a very independent and active woman. She was involved in painting and the arts and was very active in a local painting club and other community events. After the accident, she was unable to continue any of this involvement and she had considerable difficulty maintaining her independence. She had to rely on her sister and Ms. Erikson to help her with meals and other things. She developed ways to get around her house and she managed as best as she could. However, it is apparent that the severe limitations on her ability to participate in activities outside her home for close to a year and a half left her feeling very isolated. Moreover, the accident occurred at a very difficult time in Ms. Etson’s life, when her daughter was in the later stages of a terminal illness. While she said little about this, it was clear to me that her injuries made it practically impossible for her to visit her daughter before her death in April 2009. Since the hip replacement surgery in April 2010, Ms. Etson’s condition has improved significantly but she has not yet found the spirit to return to her pre-accident activities and she is still not socially active. I am satisfied that the injury is a factor here, but I also find that some of this lack of spirit is attributed to other factors, such as the death of her daughter.

[63] Clearly, Ms. Etson’s injuries have had a profound effect of her life. She has recovered reasonably well since April 2010 but she still has residual problems. She is limited in how far she can walk, she still uses a cane when walking for more than two or three blocks and she has a bit of a limp. She is able to live independently now but she is still not able to do heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s comment that “there would have been some residual symptoms during her recovery from the hip replacement of about 3 months”. This statement is not consistent with his own observations of her condition on September 27, 2010, and is not consistent with Ms. Etson’s evidence, which I do accept. Her residual symptoms have lasted longer than that and while her prognosis is not entirely clear, it is likely that she will be able to resume most, if not all, of her pre-accident activities by the spring.

[64] I do accept Dr. Moreau’s opinion that Ms. Etson will not require any further treatment or specific rehabilitation and that it is very unlikely that she will have any further problems or disabilities because of the hip injury…

[70] In this case, the injuries had a profound effect on Ms. Etson’s life. Her active and independent life style, which was important to her, was seriously compromised for over a year and a half. During that time she experienced significant pain and had to undergo three surgeries. She is now able to resume most of her former activities but she still has some residual effects. Given my findings, I assess non-pecuniary damages at $90,000.

Recognizing the Real Financial Toll of Catastrophic Injuries

Written by admin on December 13, 2010. Posted in Cost of Future Care Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized. 53 Comments on Recognizing the Real Financial Toll of Catastrophic Injuries

(UPDATE: February 3, 2012 – The below cost of care award was reduced somewhat in reasons for judgement released by the BC Court of Appeal)
Important reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, recognizing the real financial toll that catastrophic injuries can cause.
In today’s case (O’Connell v. Yung) the Plaintiff was seriously injured in a 2007 motor vehicle collision. Her car was struck by a tractor-trailer pinning her vehicle against the Massey Tunnel. The injuries were extensive and these included traumatic brain injury, a cervical spine fracture, fractures to her right femur, ankle, tibia, fibula, toes, ribs, nose and sternum. The Plaintiff also sustained injury to her spleen and liver. These left the Plaintiff with chronic pain and serious dysfunction requiring a high level of daily supervision and care.
The Plaintiff initially received such care from a ‘personal care worker’, however she was uncomfortable having strangers tend to her for prolonged periods and eventually her husband of many years took over the role as primary caregiver. This amounted to full time work.
The biggest issue at trial was the Plaintiff’s accident related future care needs. The Plaintiff sought compensation for the fair value of hiring individuals to provide her with the care she needed. The Defendant argued that “any award for the future cost of personal care must be reduced to take into account the fact that Mr. O’Connell is present in the household to provide supervision and guidance and a contingency can be factored in to address the possibility that he will at some point be unable or unwilling to continue to provide this care“.
Madam Justice Fisher rejected this argument and went on to award the Plaintiff $2.25 million dollars to compensate her for her future care needs. In doing so the Court provided the following useful reasons:

[124] I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell. Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her. A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

[125] The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services. The majority of the court stated at p. 75:

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

[126] In McTavish v. MacGillivray, 2000 BCCA 164, the court was also dealing with an award for the loss of housekeeping capacity, both past and future, and interpreting and applying the principles set out in Kroeker v. Jansen. At para. 43, Huddart J.A. stated:

.. the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[127] While Kroeker was restricted to housekeeping services and, as Huddart J.A. noted, the court did not adopt the analogy with future care as a general rule, it is my opinion that the same principle can be applied in the circumstances of this case with respect to personal care services that may or may not be hired in the future.

The Standard of Care For Drivers Approaching Flashing Green Lights

Written by admin on November 9, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the issue of fault for intersection crashes governed by a flashing green light.
In today’s case (Nonis v. Granata) the Plaintiff was involved in a collision with the Defendant’s vehicle. The crash happened at a busy intersection in Burnaby, BC. The Plaintiff approached an intersection which was governed by a stop sign in his direction of travel. He left the stop sign and attempted to drive through the intersection which consisted of 6 lanes of travel. Vehicles were stopped in the first 5 lanes. As the Plaintiff entered the 6th lane the Plaintiff failed to see the Defendant’s oncoming vehicle and the collision occurred.
The Defendant was not speeding. He was faced with a flashing green light as he approached the intersection and had the right of way. Despite this the Defendant was found 25% at fault for the crash for not taking appropriate care in all of the circumstances. In reaching this verdict Madam Justice Fisher provided the following reasons addressing motorists responsibility when approaching a flashing green light:

[12] A driver approaching a flashing traffic signal also has a duty to proceed with caution. Section 131(5) provides that when a flashing green light is exhibited by a traffic control signal at an intersection,

(a) the driver of a vehicle approaching the intersection or signal and facing the signal must cause it to approach the intersection or signal in such a manner that he or she is able to cause the vehicle to stop before reaching the signal or any crosswalk in the vicinity of the signal if a stop should become necessary, and must yield the right of way to pedestrians lawfully in a crosswalk in the vicinity of the signal or in the intersection …

[13] Although this section has been held to advantage pedestrians, the presence of a flashing green light may be considered in assessing the potential liability of a dominant driver involved in a collision with another vehicle: Gautreau v. Hollige, 2000 BCCA 390. Accordingly, in the circumstances of this case, I am entitled to consider the flashing green light as a factor in assessing the driving of the defendant and his obligation to respond to the danger that was presented by the plaintiff…

[28] The defendant, while the dominant driver, proceeded toward an intersection with a flashing green light in circumstances where the traffic in the immediate two lanes to his left had either stopped or was barely moving. In my view, he had a duty – consistent with s. 131(5) of the Act – to slow down sufficiently to be able to cause his vehicle to stop should this become necessary. This he did not do. His evidence was that he was driving at approximately 40 kilometres per hour. Had he slowed down, he would have had a sufficient opportunity to avoid the collision, as he would have been in the same position as the vehicles to his left. His failure to keep a proper lookout contributed to the accident….

[33] For all of these reasons, it is my view that both parties were at fault for this collision. Because the defendant was the dominant driver, I consider him to be less at fault. Although he failed to slow down, he was not speeding, as were the defendants in both Andrews and Hynna. Under the Negligence Act, I find the plaintiff 75% at fault and the defendant 25% at fault.