Tag: Madam Justice Loo

$3 Million "Diminished Capacity" Award For Brain Injured Teen Who Planned on Being Engineer

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.
In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant.  The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.
The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer.  In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:
[197]     I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198]     While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199]     Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200]     There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202]     I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life.  He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203]     Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204]     The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.

$90,000 Non-Pecuniary Assessment For Chronic Myofascial Pain

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic myofascial pain symptoms following a collision.
In today’s case (Camilleri v. Bergen) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff suffered from chronic myofascial pain symptoms which were not expected to improve.  In assessing non-pecuniary damages at $90,000 Madam Justice Loo provided the following reasons:

[74]        As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms. I can do no better than to summarize her symptoms as set out in Dr. Dost’s report. She complains of:

1.   Constant cervical or neck pain that radiates to the interscapular region, left shoulder and diffusely down her arm to her third and fifth fingers;

2.   Constant thoracolumbar or back pain, without radicular symptoms, but with numbness and tingling;

3.   Headaches almost daily. About four days a week she has a dull headache, occipital pressure, and some nausea. Three days a week her headaches are quite severe and radiate to her left eye with pressure, pounding, nausea, and light and noise sensitivity;

4.   Sleep disruption secondary to pain;

5.   Altered mood;

6.   Light-headedness (a faint-like sensation that occurs early in the morning);

7.   Increased tinnitus;

8.   Increased blurred vision requiring stronger prescription glasses; and

9.   Difficulties with memory, processing speed, multitasking, attention and recall.

[75]        Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.

[76]        Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money. She could easily have made more money in private practice but she was committed to helping those who could not afford private care. She was so committed to her work that she increased her hours of work after the accident so that her patients would continue to have treatment despite the toll it has taken on her physical and emotional health.

[77]        Ms. Camilleri said that it has been emotionally challenging for her to be forced to step back into what she considers a lesser role in the treatment of the eating disordered. She enjoyed her volunteer positions, she enjoyed teaching, she enjoyed the continuing education opportunities with other health professionals, and she enjoyed research. Those are things she can no longer enjoy.

[78]        She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy. She no longer even travels.

[79]        I have no reason to doubt Ms. Camilleri’s evidence. There is no suggestion that she is anything other than a credible, straightforward witness who keeps doing her best in situations where others likely would have given up. But she has been forced to give up many of the things in life that she enjoyed…

[88]        I conclude that an appropriate award in this case for non-pecuniary damages is $90,000.

$80,000 Non-Pecuniary Assessment For Chronic Hip Soft Tissue Injury

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hip soft tissue injury.
In last week’s case (Pisani v. Pearce) the Plaintiff was involved in a ‘significant‘ head on collision.  Fault was admitted by the Defendant.   The crash resulted in a non-specific soft tissue injury to the Plaintiff’s hip.  The symptoms interfered with the Plaintiff’s physical lifestyle and were expected to linger indefinitely.  In assessing non-pecuniary damages at $80,000 Madam Justice Loo provided the following reasons:

[73] Ms. Pisani was injured in a significant head on collision. Her 2009 Mercedes C300 4Matic was written off. She sustained soft tissue injuries to her shoulder, neck, and back. She will likely suffer flare ups from time to time for the rest of her life. She now has problems with her hip that prevent her from enjoying activities she used to enjoy. There is no diagnosis for the problem with her hip, and there is little or no evidence that it will improve. Her relationship with her boyfriend and her friends has been adversely affected.

[74] Her social life and her extracurricular activities have been adversely affected. She has difficulty attending the mosque because sitting on the floor causes her pain. She cannot dance, play soccer, hike, ride her bicycle, or ski. Dancing has always played a big and important part of her life. Hopefully by carrying out Dr. Anton’s recommendations, she will improve her postural muscles and core stabilizers and may be able to resume most of her activities…

[87] In this case, Dr. Anton suggests that Ms. Pisani’s neck, shoulder, and lower back symptoms should hopefully improve with one on one training with a qualified kinesiologist. Dr. Anton also suggests that if Ms. Pisani fails to have a good response to the training, she may not be able to resume dancing. She will probably suffer flare ups of her injuries for the rest of her life. She is still only 23 years old. There is also no evidence that her hip problem will resolve.

[88] I conclude that a fair and reasonable award of non-pecuniary damages is $80,000.

In addition to the above, paragraphs 96-104 are worth reviewing for the Court’s discussion of damages for the Plaintiff’s delayed entry into the workforce as a result of her injuries.

Can You Sue Twice For Damages From the Same Event?


(UPDATE June 28, 2012 – the case discussed in the below post was reversed by the BC Court of Appeal in reasons for judgement released today; you can click here to read the Court of Appeal’s reasons)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this topic.
In last week’s case (Singh v. McHatten) the Plaintiff was involved in a 2006 motor vehicle collision.  Following the collision ICBC found the Plaintiff at fault.  Displeased with this decision, the Plaintiff sued the Defendants in small claims court asking the Court to decide the issue of liability.  The Plaintiff sought damages for his deductible and increased insurance premiums.  His trial succeeded with the Court finding the Defendants at fault and awarding damages to the Plaintiff.
Before the limitation period expired the Plaintiff sued for damages stemming from his personal injuries from the same collision.  He did so in the BC Supreme Court.  ICBC brought a motion to dismiss the lawsuit arguing that the Plaintiff was “estopped” from suing again due to the small claims court trial.  Madam Justice Loo disagreed and allowed the personal injury lawsuit to proceed.  In dismissing ICBC’s motion the Court provided the following reasons:

[31] In my view the cause of action in the prior Small Claims action is distinct from the cause of action in this Court. While the Notice of Claim filed by the plaintiff in Small Claims Court claimed “vehicle damage & repair costs”, it is clear on a review of the transcript of the proceedings that the plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for repair costs because ICBC had paid the repair costs. The primary issue was ICBC’s determination that the plaintiff was wholly at fault for the accident and the plaintiff’s increased insurance premiums. Counsel for the plaintiff made it clear that the claim for personal injuries and damages would be dealt with later, and that was understood by counsel for ICBC. On that basis neither the third nor the fourth criteria for cause of action estoppel, or the first criteria for issue estoppel have been met.

[32] The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33] I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability isres judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[34] The application is dismissed with costs.

As a point of interest, the recent BC Court of Appeal case of Innes v. Bui is worth reviewing for the Court’s comments on appropriate parties to sue when the only dispute following a collision is ICBC’s determination of fault and the premium consequences that flow from this.

Lawyer Shopping Not Enough to Create Conflict of Interest in Personal Injury Claim


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing conflicts of interest when a lawyer sues a person who previously contacted their firm following a motor vehicle collision.
In last week’s case (Caballero v. O’Callaghan) the Defendant was the owner of a vehicle which was involved in a single vehicle collision.  The Plaintiff was a passenger in the vehicle and was injured.  Shortly after the collision the Defendant owner contacted several lawfirms including the firm that eventually was retained by the Plaintiff.
The Plaintiff ultimately sued both the owner and driver of the vehicle he was in.  A few years into the lawsuit the Defendant owner brought an application to dismiss the Plaintiff’s lawyer arguing he was acting in a conflict of interest.   Madam Justice Loo disagreed finding that while the Defendant did phone the Plaintiff’s lawfirm, he never spoke with the Plaintiff’s lawyer nor did he retain the firm.  In dismissing the application the Court provided the following reasons:



[36] The facts in this case fall within what is often referred to in these types of cases as a “shopping case”. Mr. Wells was looking or shopping for a lawyer and for legal advice. What he told Ms. D’Souza is most likely what he told the “numerous” lawyers he contacted on September 20, 2006.

[37] A reasonable person informed of all of the facts would not conclude there is a risk that Mr. Wells will be prejudiced by the information he provided to Ms. D’Souza or Slater Vecchio, or that anything unjust would arise.

[38] If I am wrong, there are other facts that I can take into account in deciding whether this application should succeed or whether Mr. Cantu should maintain his right to be represented by the counsel of his choice. Mr. Wells has known about this action since at least in or around October 20, 2008 when Quinlan Abrioux entered an appearance on his behalf. Yet he delayed almost two years before he first raised the issue of a conflict. Since December 2006 Slater Vecchio has done a significant amount of preparatory work for the trial which is set for ten days commencing February 6, 2012. Mr. Cantu selected Slater Vecchio as his counsel. As a result of the injuries he sustained in the accident, Mr. Cantu had to close his business, has been unable to find other employment, and is currently working with a vocation counsellor to consider his future employment options. He has either undergone or expects to undergo hip surgery with an expected long and painful recovery period. He is anxious to have the action resolved and move on with his life.

[39] However, apart from any delay argument, I conclude that the interests of justice do not require this Court to remove Slater Vecchio as lawyer for the plaintiff and the application is dismissed with costs.



Mild Traumatic Brain Injuries and the Recognition of Symptoms


When people suffer from mild traumatic brain injuries (MTBI), it sometimes takes time for people to recognize the extent of the injury and the impact that the consequences of MTBI have on everyday life.  Changes can be subtle but the impact could be dramatic.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering such a case.
In today’s case (Burdett v. Eidse) the Plaintiff was involved in 2 serious motor vehicle accidents.  The first in Kelowna, the second in North Vancouver.  Fault was not admitted for the first but after trial the Court found the Defendant 100% liable for the first crash.  Fault was admitted by the Defendant for the second crash.  Madam Justice Loo was asked to determine the extent of the Plaintiff’s accident related injuries.
The Plaintiff suffered from an MTBI in the first crash.  As is sometimes seen with these types of injuries the Plaintiff did not appreciate the significant impact his MTBI had on his level of functioning.   The Plaintiff, who had a “bulldog” attitude took very little time off work and complained very little about the consequences of the car crash.
To those around the Plaintiff, however, the changes were noticeable.  Evidence was called that there were significant changes in the Plaintiff’s functioning after the car crash by those close to him.  Ultimately Madam Justice Loo of the BC Supreme Court accepted that the Plaintiff did suffer an MTBI in the collision and that he was competitively unemployable as a result.  The Court went on to award just over $1.1 Million in total damages including an award of $200,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In reaching her conclusions Madam Justice Loo highlighted the difficulty the Plaintiff had in realizing the consequences of the car crash.  Some of the key findings were as follows:

[106] When asked when he became aware that he had a problem, Mr. Burdett said that when he first saw his counsel Mr. Burns, he mentioned he had an accident, and “kind of left it” at that. No one in his crew told him he was not doing what he was supposed to be doing on the job. Then “weird things” started “creeping into my life”. Friends started telling him he was forgetting things, he was having a hard time remembering numbers, he could no longer estimate the cost of a plan, and he was forgetting things at work. His crew told him to get joist hangers and he returned with something else. They started writing things down for him so that he would remember. He finally realized “there’s something really wrong here; I need help”. He returned to see Mr. Burns again.

[107] There is no evidence of when Mr. Burdett saw his counsel the first or second time, but this action was commenced and a statement of claim filed on April 4, 2007. The statement of defence was filed July 30, 2007.

[108] Despite what his family, friends, and co-workers saw and observed of Mr. Burdett, it was not until he saw Dr. Cameron that he recognized the extent of his injuries from the motor vehicle accident of June 26, 2005.

[109] At the time Mr. Burdett worked on the Losch and Summerland Motel projects, he thought he was doing fine. In retrospect, he was not. In retrospect he realized that he was cut out of the loop, did not stay on top of matters, and let work get out of control.

[110] Several times during the construction of the Losch projects, the architect voiced to him that the project was not running satisfactorily. Not only has an architect never said that to him, but Mr. Burdett also did not realize that the project was not running smoothly at the time.

[111] Mr. Burdett’s company is still owed $80,000 on the Losch project, but Mr. Burdett is unable to determine what the deficiencies are or what work has been left undone because he left everything to the job superintendent with whom he no longer has a relationship.

[112] The Summerland Motel project became an even bigger disaster because Mr. Burdett failed to properly manage the project. He did not write up a change order or extra work order and did everything with a wave of his hand. He never made sure that the owner had financing in place, with the result that Mr. Burdett financed much of the work with his own personal funds. He did not deal with the trades as he should have, with the result that trades walked off the job or never showed up. The job occurred at a time when carpenters and other trades were hard to get. Mr. Burdett misquoted parts of the work by leaving out necessary work, and did not know at the time that he was having difficulty estimating and working with numbers.

[188] There is no doubt that Mr. Burdett initially did not recognize the extent of his injuries:  Dr. John Pullyblank testified that it is not uncommon when a person suffers neurocognitive injuries. It takes that person some time to realize that his brain does not work the way it used to.

[189] I find that Mr. Burdett is neither a complainer nor a malingerer. At first, he was not aware of the extent of his cognitive difficulties and worked without even telling those with whom he worked closely that he had been in an accident. Common sense tells me that those who worked with him would not and did not tell him that something was wrong with him or his brain. This is supported by the evidence. Instead, those who worked with him avoided dealing with him and basically cut him out of the loop.

[190] Dr. Kates, Mr. Nemeth, Dr. Cameron, and Dr. Kaushanksy all spoke about Mr. Burdett’s bullish or bulldog attitude. Dr. Kaushansky put it best when he said that Mr. Burdett probably did not recognize he was injured in the accident (I pause to note that Mr. Burdett seemed genuinely surprised when the police officer’s report indicated that he had been injured). It is part of his bull dog approach: “This is a nothing accident. I’m out of here and on my way”. It explains why he took no time off work, why he told very few about the accident, and why he complained little, if at all…

[194] While Mr. Burdett clearly did not appreciate the extent of his injuries or that something was wrong with him, clearly those who were close to him—his family, friends, and workers—knew he was a different man long before Dr. Cameron’s diagnosis…

[198] I conclude on a consideration of all of the evidence that Mr. Burdett suffered soft tissue injuries and a concussion or an MTBI from the June 2005 accident. He had a pre-existing brain injury that made him more susceptible to more significant and prolonged symptoms, and he fell within that small percentage of individuals who do not recover. His soft tissue injuries were aggravated by the January 2006 accident. The overwhelming evidence is that Mr. Burdett suffered cognitive impairment immediately after the first accident, his condition will likely not improve, and he will suffer the same problems for the rest of his life. His anxiety and depression are related to the accident and the realization that not only is he no longer the same high functioning successful businessman that he once was, but also that his condition is permanent and he is not likely to recover.

[199] I conclude on all of the evidence that Mr. Burdett is no longer capable of working as a contractor and is competitively unemployable, or put at its best, is minimally employable.

It is difficult to extract sound bites from a case like this and I suggest that anyone interested in Brain Injury litigation in British Columbia review this judgement in full to see some of the types of issues that can arise in MTBI cases.

This judgement reveals 2 issues that are worth taking note of.  First that lay witnesses (friends, family co-workers) play a vital role in brain injury litigation as their evidence can be key towards establishing not just the diagnosis of injury but the severity of its impact.  Second this case shows that being stoic in the face of injury does nothing to reduce the value of an injury claim.  Here the Plaintiff’ ‘bulldog‘ attitude did not reduce the value of his claim and in all likelihood assisted the Court in making positive credibility findings.

$95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Reasons for judgement were released yesterday dealing with an appropriate award of damages for soft tissue injuries and chronic pain lasting for over 6 years.
In yesterday’s case (Gosal v. Singh) the Plaintiff was involved in 2 BC Car Crashes.  The first in 2003, the second in 2005. The first crash was a rear end collision.  Fault was admitted.  As the Plaintiff was recovering from her injuries from the first collision she was involved in the second collision.
The second crash happened when the Defendant, who was parked, pulled out in front of the Plaintiff’s lane of travel.  Fault was not admitted but Madam Justice Loo held that the defendant was 100% at fault finding that he “moved his vehicle from a parked position without first determining that he could do so safely, and that (the Plaintiff) had no opportunity to avoid the collision.”
The Plaintiff suffered from various soft tissue injuries and chronic pain which lasted for over 6 years and still bothered the Plaintiff by the time of trial.  In valuing the Plaintiff’s non-pecuniary damages (pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Loo made the following findings:

[49] Ms. Gosal suffered mild to moderate soft tissue injuries to her neck, upper back, shoulders, and mid and lower back, which caused severe headaches. She was treated with physiotherapy, massage, and chiropractic treatments, but her recovery took longer because of her depression and anxiety. She was recovering when the second accident exacerbated her injuries, including her depression and anxiety.

[50] Dr. Khunkhun states that Ms. Gosal’s long-term prognosis is guarded because her symptoms have not resolved after such a long period of time since the accidents. She does not consider Ms. Gosal to be at an increased risk of any long-term sequelae such as osteoarthritis. She believes Ms. Gosal would continue to benefit from body conditioning and strengthening exercises. She observed that in the past Ms. Gosal benefitted from regular exercise and when she stops exercising regularly, her mood deteriorates and her pain increases.

[51] Dr. Manchanda last saw Ms. Gosal on September 24, 2008. She told him that she had pain on about four or five days a week, and no pain on about two days a week. She was still looking for employment in counselling. At that time, Dr. Manchanda felt that Ms. Gosal could work in a job that was sedentary or involved light physical duties. He also felt that Ms. Gosal could complete the majority of her household chores, but that she might require a break or assistance with the heavier chores, such as vacuuming or carrying heavy laundry.

[52] Dr. Manchanda’s prognosis has thus far proved to be accurate. Ms. Gosal has worked full-time since October 6, 2008 in a job that is fairly sedentary and involves only light physical duties. There is no evidence that she has taken time off work because of symptoms arising from the accidents…

[67] I prefer Dr. Sandhu’s opinion that Ms. Gosal is not seeking secondary gains. She was looking after the household and her children’s needs as best she could, and doing her best to continue with her studies. Having observed Ms. Gosal, and on all the evidence, I conclude that she is not malingering and that her complaints of pain and depression are genuine.

[68] She continues to improve, albeit slowly. I find that there are two to three days a week when she is not in pain. Full-time employment has assisted her both physically and emotionally. Though it is now more than six years since the first accident, and more than four years since the second accident, she still suffers from depression and pain. I anticipate that over the next few years, with a regular daily exercise program, her physical pain and depression will continue to improve but may not resolve completely.

[71] I find that circumstances of Ms. Gosal’s injuries are similar to those in Foran v. Nguyen, 2006 BCSC 605, 149 A.C.W.S. (3d) 419, where the award for non-pecuniary damages was $90,000, and Jackson v. Lai, 2007 BCSC 1023, 160 A.C.W.S. (3d) 276, where the award was $100,000.

[72] I consider an award of $95,000 for non-pecuniary damages to be appropriate.

In addition to this case’s value as a precedent for valuing non-pecuniary damages for chronic pain, this case is worth reviewing for the Court’s criticism of the expert witness called by the defense.

I’ve previously written about the duty of experts to the court and highlighted judicial criticism when experts ignore this duty.  In today’s case the court made critical findings with respect to Dr. Hymie Davis, a psychiatrist who billed over $290,000 to ICBC in 2008.  Specifically Madam Justice Loo found that Dr. Davis “was presenting a case for the defence rather than providing an impartial expert opinion.  Dr. Davis’ argument that (the Plaintiff’s) injuries should have healed and that she is seeking secondary gains or malingering, is at odds with his article “The Whiplash Injury“.

BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act.

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

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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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