Tag: Madam Justice Gerow

PTSD Claim By Accident Witness Dismissed as "Too Remote"

Written by admin on February 18, 2011. Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized. 116 Comments on PTSD Claim By Accident Witness Dismissed as "Too Remote"

If a witness to a BC motor vehicle collision suffers psychological injuries as a result of what they see they can claim damages. There are, however, restrictions on when these claims can succeed. Reasons for judgement were released today addressing this area of law.
In today’s case (Deros v. McCauley) the Plaintiff witnessed a collision caused by an “inebriated” driver in 2001. At the time the Plaintiff was working on Highway 97 near Bear Lake, BC. The Plaintiff was installing rumble strips on the side of the highway. The Plaintiff was operating a sweeper and his friend, (Mr. Lance) was operating a grinder nearby. The Defendant lost control of a pickup truck and collided with the grinder. The Plaintiff witnessed the crash and was concerned for his friend. Fortunately Mr. Lance “was not seriously injured“.
The Plaintiff claimed the incident caused PTSD and sued for damages. The Insurance company for the Defendant argued that even if the Plaintiff suffered from PTSD this injury was ‘too remote‘ and therefore not compensable. Madam Justice Gerow agreed and dismissed the lawsuit. In doing so the Court provided the following useful reasons addressing the restricted circumstances when a witness to a crash can successfully sue for psychological damages:
[17] In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23] The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24] As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

[25] In this case, Mr. Deros witnessed a collision that involved no serious injuries. Even if I accept Mr. Deros’ evidence at trial that he initially thought a rod had skewered Mr. Lance, he knew within minutes this did not occur and Mr. Lance had not suffered serious injury….

[29] There is no evidence that a person of ordinary fortitude would have suffered nervous shock injury or mental illness as a result of witnessing this accident. The experts testified about Mr. Deros’ particular reaction to the accident, but not that a person of ordinary fortitude would have suffered mental injury.

[30] Mr. Deros does not argue that a person of ordinary fortitude would suffer mental injury from witnessing this accident. Rather, Mr. Deros argues that the evidence from the experts establishes that he was more prone to suffer from PTSD than an ordinary person was from witnessing this accident. As stated earlier, Mr. Deros argues that the evidence supports a finding he suffered mental or psychological injury from witnessing this accident because he was more prone to injury as a result of his pre-existing condition, i.e. he was a thin skull, and was not a person of ordinary fortitude.

[31] Having failed to establish that a person of ordinary fortitude would suffer a mental injury from witnessing this accident, it follows that Mr. Deros’ claim must fail.

Nightclub Found 35% At Fault for Injuries to Patron Struck By Beer Bottle

Written by admin on April 29, 2010. Posted in Uncategorized. 50 Comments on Nightclub Found 3550 At Fault for Injuries to Patron Struck By Beer Bottle

Reasons for judgement were released today discussing the duty of British Columbia nightclubs to take reasonable care in seeing that their patrons are safe.
In today’s case (Hartley v. RCM Management Ltd.) the Plaintiff was injured when he was “struck by a beer bottle in his right eye by an unidentified assailant” while at a nightclub. The Plaintiff sued the corporate defendants that operated the Nightclub.
Before being struck by the bottle the Plaintiff had a verbal altercation with the unknown assailant which lasted 2 – 2.5 minutes. The Plaintiff argued that the Nightclub was responsible for failing to intervene in that time and had they done so this injury would have been prevented. Madam Justice Gerow agreed in part with the Plaintiff and found that the unknown assailant was 50% responsible, the Plaintiff was 15% responsible and the corporate Defendants 35% responsible for failing to have its security guards intervene in the altercation. In reaching this verdict the Court provided the following reasons:

[25] It is clear from the case law that the corporate defendants were not an insurer of Mr. Hartley’s safety. However, there are circumstances in which an occupier of a nightclub or bar has been found liable to its patron for injuries caused by another patron. Whether or not an occupier of a nightclub or bar will be liable for injuries caused to a patron by another patron is very fact dependent.

[26] The issue is whether the corporate defendants took reasonable steps to protect Mr. Hartley from a danger they ought to have recognized when Mr. Lutke and the unidentified man were yelling and pushing and shoving.

[27] On the night of the incident, there were five security staff on duty. The uncontroverted evidence of Mr. Lutke and Mr. Hartley is that Mr. Lutke and an unidentified man were involved in an altercation – pushing and shoving accompanied by loud yelling – for 2 to 2½ minutes….

In my view, it is reasonably foreseeable that the type of altercation described by Mr. Lutke and Mr. Hartley could escalate, and lead to a fight in which someone could be injured by being hit by a bottle.

[31] The uncontradicted evidence of Mr. Hartley and Mr. Lutke is that the altercation went on for 2 to 2½ minutes before Mr. Lutke was hit with the bottle and Mr. Hartley stepped in to assist him. As indicated earlier, Mr. MacLeod conceded that such behaviour – yelling and shoving and pushing – would not be tolerated for that length of time in the Barfly. I am of the view there was more than adequate time for security staff to intervene before Mr. Hartley felt it necessary to go to Mr. Lutke’s aid. Their failure to do so was, in my view, a breach of their duty under s. 3 of the Occupiers’ Liability Act.

Can a Defendant Force a Case Into Rule 68?

Written by admin on March 11, 2010. Posted in Civil Procedure, Uncategorized. 53 Comments on Can a Defendant Force a Case Into Rule 68?

Interesting reasons were released yesterday by the BC Supreme Court, Vancouver Registry, dealing with a unique issue; can a Defendant force a case into Rule 68 against the Plaintiff’s wishes?
By way of brief background Rule 68 is the ‘proportionality‘ rule and is mandatory for all injury cases under $100,000.
In British Columbia Plaintiff’s don’t need to plead the value of their claim. Ultimately only the Plaintiff knows what final number they will be seeking at trial and this information does not have to be shared with the Defendant ahead of time. Appreciating this, can a Plaintiff simply defeat a Defence application to put a case into Rule 68 by claiming he will seek more than $100,000 in total damages at trial?
In today’s case (Singleton v. O’Neil) this issue was dealt with. The Plaintiff sued for damages as a result of an alleged assault which occurred on July 11, 2009. He prosecuted his claim in the usual course (outside of Rule 68) and set the matter for a 5 day Jury Trial. The Defendant’s opposed this and brought a motion to force the case into Rule 68 saying it was clearly worth less than $100,000 and that the rule was mandatory in these circumstances. The Plaintiff opposed arguing that he is claiming in excess of $100,000.
Madam Justice Gerow granted the motion finding that the case was likely worth less than $100,000 and cannot “justify the expense of a five day jury trial“. The Court provided the following reasons:

[13] Mr. Singleton did not provide any authorities which support his position that an award for the types of injuries he suffered and his treatment by the defendants will exceed $100,000. As well, he has not presented any authority for his position that it is the plaintiff who determines whether the claim should be brought under Rule 68. I note that there appears to be no such limitation in the rules. Rule 68(7) provides that on the application of any party, or as result of the court’s own application, an order may be made that the rule does not apply to an action. In other words, it is not up to only one of the parties to determine whether or not Rule 68 applies.

[14] The rule is mandatory in nature and applies to all claims which fall into subrule (2). In my view, the evidence to date and the case law to which I have been referred, supports the defendants’ position that the claim being advanced by Mr. Singleton is one which falls within Rule 68. Most of the pre-trial procedure has been completed, and the examinations for discovery which have been conducted have fallen within the time limits set out in Rule 68. Neither the plaintiff nor the defendants are suggesting they will require experts in addition to those allowed under the rule.

[15] As set out in subrule (13), the overarching consideration in determining applications under Rule 68 is proportionality. The court must consider what is reasonable in relation to the amount at issue in the action.

[16] As in Berenjian and Uribe v. Magnus, 2009 BCSC 1230, a jury trial is being sought by the party opposing the application for an order that the matter falls within Rule 68. Based on the affidavit material, I have concluded that the claim being advanced by Mr. Singleton is relatively simple and straightforward, and is not one that can justify the expense of a five day jury trial.

[17] For the forgoing reasons, I have determined it is appropriate to make the order sought by the defendants. Accordingly, I am making an order that this matter proceed under Rule 68, and the trial be before a judge alone.

This is an interesting judgement because it seems to require that a Plaintiff adduce evidence of the likely value of their claim to defeat such a motion.

As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010. Rule 68 is repealed under the new rules but parts of it survive in Rule 15. I’ve previously written about this and you can find my analysis here. In short, Rule 15 incorporates the mandatory language of Rule 68 for personal injury claims under $100,000 so this case will likely retain its value as a precedent after the new rules take effect.