Tag: Madam Justice Ross

Bus Passenger Injuries: When Can a Driver be sued in Negligence?


When a Bus Driver is involved in an at-fault collision causing injury to the passengers a suit for damages can usually be brought.  What if there is no collision but instead the bus driver makes an abrupt move causing injury to the passengers, can a suit succeed on these facts?  Depending on the circumstances the answer is yes.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this area of the law.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus in Burnaby, BC.  The Plaintiff testified that the driver went over a speed bump and that “her seat cushion slid out from under her and she became briefly airborne during which time her neck snapped forward and back“.  The Court ultimately dismissed the lawsuit finding that the Defendant drove the bus appropriately.  Prior to making this finding Madam Justice Ross provided the following useful discussion addressing this area of the law:

[26] The standard of care owed by a transit operator to a passenger was addressed in Day v. Toronto Transportation Commission, [1940] S.C.R. 433. Justice Hudson described the duty as follow:

Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree: 4 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett [(1817) 2 Starkie 37], the rule was stated by Lord Ellenborough, at p. 38, as follows:

Every person who contracts for the conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences.

[27] In this province, Madam Justice Humphries summarized the principles to be applied in Lawson v. B.C. Transit, 2002 BCSC 1438, as follows at paragraph 18:

As set out in Wang v. Harrod, supra, once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

[28] Mr. Justice Berger in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.) noted that:

…this is not a case where negligence has been established. I say that because, though the bus lurched as it started up, it was a lurch that she, as someone who had travelled on the buses for twenty years had experienced in the past. Anyone who travels on the buses must expect that from time to time the movement of the buses will not be smooth and uneventful. Lurches are part of the movement of these buses and something that the people who travel on the buses learn to expect. Accidents do happen. And there are bound to be some accidents on the bus system. And some of them, like this accident, will not give rise to a right to damages.

Madam Justice Ross goes on to cite about a dozen other cases dealing with Bus Passenger injuries in BC making this week’s case a good starting point in researching bus driver liability for injury to passengers.

BC Supreme Court Finds Botox Covered Under ICBC's Part 7 Benefits


It is not uncommon for physicians to occasionally prescribe Botox Injections to treat symptoms of pain following motor vehicle collisions.  The Botox itself is not covered by the BC Medical Service Plan and people often turn to ICBC for funding of this expense.  Two recent decisions have addressed whether ICBC is obliged to fund Botox therapy when prescribed by a physician.
In 2008 Mr. Justice Macaulay provided reasons for judgement (Tiessen v. ICBC) finding that Botox is indeed a covered benefit under ICBC’s No-Fault Plan. The Court provided the following reasons:

[]           Counsel for ICBC seeks to impose too high a standard for proving that a recommended treatment is necessary.  I am satisfied that the treatment is necessary in the sense that the plaintiff needs short and long term pain relief for his lower back.  While it is impossible to predict that this particular treatment will succeed, it is nonetheless, on the evidence before me, a necessary physical treatment within the meaning of the section.

[]           There is no evidence to suggest that the proposed cost of the staged treatment is unreasonable.  The fact that the particular treatment is not covered by MSP does not establish that the cost is unreasonable.

[]           I am persuaded that the plaintiff is entitled to a declaration that he is an insured person to be benefited pursuant to Part 7 of the Regulations and a further declaration that he is entitled to receive medical rehabilitative benefits pursuant to the contract of insurance with the defendant under Policy Number 639 DER for the cost of Botox injections as recommended by Dr. Quartly.

Further reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that Botox is a benefit covered under Part 7.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured in a 2004 motor vehicle collision.  A jury awarded the Plaintiff damages including just over $60,000 for the cost of her future medical care.   The court was then asked to reduce the award to take into account the future expenses that were covered directly by the Plaintiff’s Part 7 Benefits to avoid “double recovery”  (You can click here to read more about this topic).  Madam Justice Ross ultimately made a modest deduction to the Jury’s award.  Part of the deduction reflected the cost of future Botox injections which the Court accepted was a responsibility of ICBC’s under the Plaintiff’s Part 7 Benefits.
Today’s case coupled with Mr. Justice Macaulay’s 2008 decision make it clear that Botox can be covered under people’s own policies of ICBC Insurance.

More on BC Injury Claims and Improper Closing Arguments – Appealing to Juror's Emotion

Further to my recent post on this topic, part of a trial lawyer’s job is to convincingly advance their client’s case.  There are limits, however, on the types of statements a lawyer can make to a jury and if these boundaries are overstepped a mistrial may occur.  Today reasons for judgement were published on the BC Supreme Court website discussing the Court’s discretion to order a mistrial when improper statements are made in the course of trial.
In today’s case (Plensky v. Di Biase) the Plaintiff was injured and sued for her damages.  During closing arguments before a Jury the Plaintiff’s lawyer said “I have been carrying the burden (of the Plaintiff’s) file from the time she first walked into my office.  At this point I can hand that burden to you with the hope that she will be restored as much as money can restore her“.
The Defence lawyer objected to this arguing that the statement was made to “appeal to the jury’s sentiment and emotion, improperly interpose counsel in the proceedings and suggest a form of pact between the counsel and the jury“.  The Defence lawyer asked that the Jury be discharged and the verdict be pronounced by Judge alone.  Madam Justice Ross agreed that the statement was in fact inappropriate but chose not to discharge the jury.  In reaching this decision the Court reasoned as follows:

[4]             In such applications, the onus is on the applicant to establish that the misconduct was likely to prejudice the jury, or may have affected a verdict or deprived a party of a fair trial. See Giang v. Clayton, 2005 BCCA 54, 38 B.C.L.R. (4th) 17. The question is whether, with appropriate instructions in the circumstances, the jury will be able to dispel the matters of concern from their minds.

[5]             The jury’s role is to be an impartial arbiter and accordingly, direct appeals to the jurors’ sympathies divert them from this important responsibility. In that regard, see Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46. In that case, at para. 46 the Supreme Court of Canada decision in Hesse v. The Saint John Railway Company (1899), 30 S.C.R. 218 was cited, in which the court stated at 239:

It is perhaps impossible to prevent jurors looking at a case in this way, but at least they ought not to be invited to do so, and such direct resorts or appeals to the feelings and interests of the individual jurymen can only exercise a disturbing or misleading influence.

[6]             In Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), the court continued with further commentary with respect to this issue noting at para. 15:

Some restrictions apply to both opening and closing addresses. For example, the expression by counsel of personal opinions, beliefs or feelings regarding the merits of a case has no place in either an opening or a closing address to a jury. That restraint is designed to prevent lawyers from putting their own credibility and reputations in issue, and to avoid any indirect invitation to a jury to decide a case based on information or opinion not established in the evidence . . .

Similarly, comments to a jury which impede the objective consideration of the evidence by the jurors, and which encourage assessment based on emotion or irrelevant considerations, are objectionable at any time. Such comments are “inflammatory”, in the sense that they appeal to the emotions of the jurors and invite prohibited reasoning. If left unchecked, inflammatory comments can undermine both the appearance and the reality of trial fairness . . . requesting a jury to act in a representative capacity will result in a mistrial.

[7]             In Gemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349, the court noted at para. 37 that the address in that case:

. . . invited the jury to identify and sympathize with the plaintiff. It put [counsel’s] personal and professional life before the jury and invited the jury to identify with his cause.

[8]             With respect to the issue of misconduct and intention, I note that misconduct is not to be limited to deliberate wrongdoing and authority for that is found in Birkan v. Barnes, 69 B.C.L.R. (2d) 132 (C.A.).

[9]             I am mindful of the importance of trial by jury and the plaintiff’s selection of that mode of trial. Such a selection should not be lightly set aside. I am also mindful that the jury deliberations are confidential and if limiting instructions are given, one must take on faith that they will be observed. That consideration makes this decision a very difficult one, however, I have concluded that this was an isolated transgression and that it can be addressed with a strong limiting instruction to the jury that will be given prior to the time that defence counsel commences his closing.

More on ICBC Claims and the Timing of Formal Settlement Offers


One principle that is becoming well defined with respect to Rule 37B is that settlement offers made on the eve of trial may not trigger any costs consequences.  Reasons for judgement were released today demonstrating this.
In today’s case (Parwani v. Sekhon) the Plaintiff was injured in a 2004 BC car crash.  The Plaintiff sued for damages.  As trial approached the Plaintiff offered to settle his case for $37,000 plus costs and disbursements.  On the last business day before trial the Defendants responded with a formal settlement offer under Rule 37B for $10,000 plus 50% of disbursements.
The claim went to trial and the Plaintiff claimed damages of $270,000.  The claim was largely unsuccessful with the Plaintiff being found 75% at fault.  Damages were assessed at $25,000 leaving an award of $6,250 for the Plaintiff (25% of $25,000).
The Parties could not agree on costs consequences.  The Defendants argued that since they beat their formal offer they should be awarded the costs of trial.  Madam Justice Ross disagreed with this submission finding that while the Defendants offer should have been accepted it was simply made too late.  In declining to award the Defendants any costs the Court reasoned as follows:

[18] The defendants submit that the offer to settle was one that ought reasonably to have been accepted given the evidence with respect to the liability issue. In addition, the position taken by the plaintiff at trial with respect to his losses was unreasonable given the medical evidence and the paucity of evidence to support the claims. The offer exceeded the plaintiff’s recovery at trial. The position of the plaintiff was that he did not have adequate time to consider the offer, coming as it did on the eve of trial. Moreover, had the plaintiff accepted the offer, considering the disbursements already incurred, the plaintiff would have recovered only $765.34. Accordingly, it was not reasonable to accept the offer. The plaintiff had made an early offer to settle that reflected a considerable discount to reflect the uncertainties in the case.

[19] In my view, while the defendants’ offer was reasonable, it was not early. It came on the eve of trial, after substantial costs and disbursements had been incurred. Such an offer is not the embodiment of the conduct the rule intends to promote. In the circumstances, and considering the factors identified in the rule, I am not prepared to consider the offer in relation to the award of costs.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

You can click here to read access my archived posts discussing Rule 37B in injury lawsuits.

BC Personal Injury Claims Round Up

On Friday two more cases were released by the BC Supreme Court dealing with non-pecuniary damages which  I summarize below to add to this Pain and Suffering database.
The first case (Macki v. Gruber) dealt with a bus accident.   The Plaintiff’s vehicle was struck by a Greyhound bus in Duncan, BC.  Liability was contested but the Greyhound bus driver was found 100% at fault for the accident.  Paragraphs 1-60 of the case deal with the issue of fault and are worth reviewing for Mr. Justice Metzger’s discussion of credibility.  In finding the Defendant at fault the Court found that he was “careless” and that he “lied” and his evidence was rejected in all areas that it was in “conflict with the testimony of any other witness“.
The Plaintiff suffered various injuries, the most serious of which neck pain, headaches and upper back pain.  She was diagnosed with a chronic pain syndrome.  Mr. Justice Metzger assessed her non-pecuniary damages at $75,000 and in doing summarized the Plaintiff’s injuries and their effect on her life as follows:

[144] I find the chronic pain has made Ms. Mackie reclusive and morose. She has gone from a “bubbly, fun-loving, outgoing, social, interesting” person, to someone who is  anti-social, with bouts of depression and sadness. From the evidence of the plaintiff and Ms. Garnett, I find that the plaintiff defines herself as a very hardworking woman, but that the chronic pain prevents her exhibiting her previous commitment to work.

[145] This loss of enjoyment of life and identity is given considerable weight.

[146] I am satisfied the plaintiff is resilient and stoic by nature, and I do not doubt the extent of her pain and suffering. She has endured a regime of injections in order to retain some of her employment capacity. Plaintiffs are not to receive a lesser damage award because of their stoicism.

[147] I am satisfied that the plaintiff’s injuries and ongoing limitations are more like those cited in the plaintiff’s authorities and therefore I award her $75,000 in non-pecuniary damages.

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In the second case released on Friday (Dhillon v. Ashton) the Plaintiff was involved in 2 separate rear-end collisions.  Both claims were heard at the same time and fault was admitted leaving the court to deal with the sole issue of damages.

Madam Justice Ross found that the Plaintiff suffered various soft tissue injuries in each of the 2 accidents.  She awarded non-pecuniary damages in total of $25,000 for both collisions.

In assessing an award of $15,000 for non-pecuniary damages for the first accident the Court summarized the Plaintiff’s injuries as follows:

[60]         I find that Mr. Dhillon suffered soft tissue injury to his neck, right shoulder and low back in the First MVA. He suffered from headaches arising from this injury, but these resolved in a relatively short period of time. The injury to the right shoulder had essentially resolved by mid-May 2005. I find, consistent with Dr. Sandhu’s report that Mr. Dhillon was unable to work as a result of his injuries from the time of the First MVA to mid-May 2005 and then continued to suffer partial disability at work until July 2005. By July 2005 he was able to return to work without limitation. I find that his injuries from the First MVA were essentially resolved by October 2005, except for intermittent pain, consistent with Dr. Sandhu’s report. From October 2005 until the time of the First Workplace Accident, Mr. Dhillon required the use of pain medication for low back pain that was the consequence of both his prior condition and lingering consequences of the First MVA.

[61]         In the result, I find that Mr. Dhillon suffered mild to moderate soft tissue injury from the First MVA with the symptoms most significant in the first three months following the injury; with some ongoing problems for the next five months and intermittent pain thereafter. I find the appropriate amount for non-pecuniary damages for the First MVA to be $15,000.00.

In assessing non-pecuniary damages of $10,000 for the second accident Madam Justice Ross summarized the injuries it caused as follows:

[64]         I find that Mr. Dhillon suffered soft tissue injuries in the Second MVA that resulted in an exacerbation of his injuries to his neck, shoulder, and low back. He had returned to work following the Second Workplace Accident before the Second MVA, but was not able to work after this accident. He required physiotherapy, chiropractic treatment and pain medication for both the continuing injuries from the Workplace Accidents, an apparent recurrence or continuation of the right side back problem first noted in 2000, and the Second MVA. Mr. Dhillon was able to return to work part-time in November 2006 and full-time in January 2007. He requires some accommodation from his employer in terms of his duties. He continues to experience pain and requires medication to control his pain. I find that the Second MVA plays some role, albeit a minimal one, in Mr. Dhillon’s continuing symptoms, the other more significant contributors being the original complaint of low back pain, and the two Workplace Accidents.

[65]         In the circumstances, I find that $10,000.00 is an appropriate award for non-pecuniary loss for the Second MVA

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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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