Tag: Mr. Justice Baird

$65,000 Non-Pecuniary Assessment for Likely “Indefinite” Neck and Back Injury

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for long lasting soft tissue injuries.

In today’s case (Poulin v. Armstrong) the Plaintiff was involved in a 2013 collision.  She was a passenger at the time and was 14 years of age.  The Defendant admitted fault.  The crash caused soft tissue injuries to her neck and upper back which became chronic and were expected to linger indefinitely.

In assessing non-pecuniary damages at $65,000

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$140,000 Non-Pecuniary Assessment for “Severe” Ankle Fracture

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a severe ankle injury.

In today’s case (Chau v. Pereira) the Plaintiff was struck by a vehicle while walking in a marked crosswalk.  The Defendant denied liability but was found fully responsible at trial.   The crash resulted in a severe ankle injury with post traumatic arthritis that was expected to deteriorate to the likely stage of needing fusion or joint replacement.  In assessing non-pecuniary damages at $140,000 Mr. Justice Baird provided the following reasons:

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BC Supreme Court – Nothing Negligent About Kids Playing "Grounders"

Reasons for judgement were released today by the BC Supreme Court, Victoria Registy, addressing whether a variation of tag called ‘grounders’ played by kids at school was negligent.  In short the Court held it was not.
In today’s case (Thompson v. Corporation of the District of Saanich) the Plaintiff was playing a game called ‘grounders’ with other kids aged 8-11 at a middle school day camp during recess when she fell fell from a piece of playground equipment and struck her head.  She sued for damages arguing the school was negligent in allowing kids to play this game.  The court dismissed the claim finding this was nothing more than an unfortunate accident.  In reaching this conclusion Mr. Justice Baird provided the following reasons:

4]             The program assistant who was supervising the playground at the material time knew that the plaintiff and her young peers were playing grounders and did not stop them. Indeed, the evidence suggests that he may well have participated in the game for a time. He deposed in evidence that he had played and enjoyed the game himself as a child and considered it to be perfectly harmless. He described the rules as follows:

Grounders is a version of tag in which one child is “it” and the other children climb on to the playground structure. The child who is “it” attempts to “tag” the children on the playground structure from the ground. The children on the structure move around to avoid being tagged. If the child who is “it” decides to climb on to the playground structure they have to close their eyes. The other children on the playground structure never close their eyes and this gives them a significant advantage. If the child who is “it” opens their eyes while on the playground structure the other children yell “broken dishes, broken dishes.” If a child that was not “it” climbed off the playground structure the child who was “it” could yell “grounders” and then the other child who was on the ground would become “it”.

[19]         The evidence submitted on this hearing establishes, and my own experiences both as a child and a parent confirm, that grounders and games like it involving pursuit and evasion are commonly played by children, who enjoy them — as did the plaintiff, whose evidence on this point was clear — because they are exciting and fun. I am prepared to take notice of the fact that, in the overwhelming majority of cases, no mischief comes to anyone from such innocent pleasures.

[20]         Specifically, I find that there is nothing inherently dangerous about grounders such that special training or instruction is required to play it or to superintend children of the plaintiff’s age and experience who choose to do so. I must reject the argument advanced by the plaintiff that it was the sort of activity that required parental consent or approval in advance. There is no doubt that games like grounders involve a small degree of risk, as do all children’s outdoor activities involving running, jumping, climbing, tagging, chasing, dodging, feinting, and so on. But judging the matter by the objective measure of the reasonably careful and prudent parent, I conclude that the risk of harm inherent in such games is sufficiently remote that to permit children to play them is not unreasonable.

[21]         The evidence satisfies me, furthermore, that the plaintiff and her peers were adequately supervised during their play time. I repeat that the District’s duty to the plaintiff did not include the removal of every possible danger that might arise while she was in the care of its employees, but was only to protect her from unreasonable risk of harm. A supervisor was close at hand minding the children throughout the recess. There was nothing to suggest that he was doing so other than diligently and conscientiously. He was standing on the playground equipment near to the plaintiff at a vantage that gave him a good view of the game and the state of play. There was no evidence that any of the children were behaving recklessly or aggressively or that there was anything unpleasant, malevolent or hazardous about their manner of interaction. The plaintiff was not pushed or touched. She said quite simply that she was moving backwards away from the child who was “it” and lost her footing.

[22]         I sympathise strongly with the plaintiff and her family. What little I was told about the consequences of this accident suggested that the plaintiff’s injuries were not trivial. But I am afraid that the consequences of the plaintiff’s misadventure cannot transform the District into a no-fault insurer, and perfection is not the standard of care to be discharged by its employees when minding school-aged children.

The Revival Of ICBC TTD Benefits

Important reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing the entitlement of a claimant to ‘revive‘ ICBC disability benefits after an attempted return to work.
In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008.  She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year.  The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.
The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits.  Mr. Justice Baird rejected this argument and set out the following reasons clarifying when an insured is entitled to revive TTD benefits with ICBC:

[35]         Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:

1.     Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period.

2.     Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability.

3.     Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.

[41]         Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies.

[42]         In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)…

[49]         I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs under s. 80; b) they can demonstrate that they are totally disabled as defined in s. 80; and c) they can show that the total disability is due to injury sustained in the original accident.

$55,000 Non-Pecuniary Assessment for Chronic Bursitis

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.
In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010.  Fault was admitted.  She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal.  In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:
[3]             As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.
[4]             The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland, recommends that these treatments continue.
[5]             Dr. Markland also recommended that the plaintiff avoid “forceful activities” at or above shoulder level, but observed that she “is fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.” While acknowledging that there is still a chance that the plaintiff’s condition may improve, Dr. Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…
[22]         In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.
 

$90,000 Non Pecuniary Assessment for Suprascapular Nerve Injury

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a suprascapular nerve injury caused by a collision.

In this week’s case (Donovan v. Parker) the Plaintiff was involved in a 2009 crash.  The Defendant admitted fault.  The collision caused a nerve injury in the Plaintiff’s shoulder which resulted “in permanent damage to the infraspinatus and supraspinatus muscles of his left rotator cuff“.   In assessing non-pecuniary damages at $90,000 Mr. Justice Baird provided the following reasons:
[40]         The plaintiff is a 39 year old man who has been reduced in his physical abilities because of his injuries. His previous activities such as skiing, camping, hiking, diving, swimming, rock-climbing and water-skiing have been much circumscribed. He has been negatively affected in his ability to engage in physical activities with his children, and he has become less useful around the home that he shares with his wife and family. His mood has been affected by persistent pain. He has been noted to be short-tempered with his wife, children, co-workers and friends. The medical evidence seems clearly to establish that his injuries are permanent and that he will have to be diligent in pursuing a course of exercise and physiotherapy to maintain his present functioning.
[41]         Of the cases relied on by the defendant under this heading of damages I find Langley v. Hepner, 2011 BCSC 179, Jurczak v. Mauro, 2013 BCSC 658, Durand v. Bolt, 2007 BCSC 480 and Cimino v. Kwit,2009 BCSC 912 to be roughly analogous to the present case. The plaintiff relied on Stapley v. Hejslet, 2006 BCCA 34, Power v. White, 2010 BCSC 1084, Dycke v. Nanaimo Paving and Seal Coating Ltd. and Foster, 2007 BCSC 455, Morlan v. Barrett, 2012 BCCA 66, all of which could legitimately be argued to be analogues with the case at bar.
[42]         Based on these authorities, I conclude that an appropriate range for non-pecuniary damages in this case is between $55,000.00 and $140,000.00. Relying especially on Cimino and Stapley, which I consider to be most similar to the present case, I think a fair, just and reasonable award would be $90,000.00.
 

No Failure to Mitigate Damages For Refusing Medical Marijuana

While BC Courts do recognize that the cost of medical marijuana can form a basis for damages in a personal injury claim, one matter that, to my knowledge, has never been addressed is whether failing to take prescribed medical marijuana can amount to a failure to mitigate damages.  This issue was dealt with in reasons for judgement released today.
In today’s case (Glesby v. MacMillian) the Plaintiff was involved in a 2009 collision.  Liability was admitted.  In the course of the claim a physician suggested medical marijuana.  The Plaintiff did not follow this advice.  The Defendant apparently argued the damages should be reduced for this failure to mitigate however Mr. Justice Baird declined to do so.  The Court, despite having reservations about the Plaintiff’s credibility, accepted her explanation for not following the advice to try medical marijuana.  In reaching this conclusion the Court provided the following comments:
[47]         Dr. Hershler examined the plaintiff on May 2, 2013, some five months before trial. His diagnosis was much the same as Dr. Kleinman’s, but without discussion of a possible interrelationship of physical and psychological factors. Soft tissue injury and chronic pain were the culprits, he said, and echoed Dr. Kleinman’s recommendation that the plaintiff should embark upon a core strengthening program. He also encouraged the plaintiff to consider the use of medical cannabis to manage her pain. The plaintiff has not taken this advice, either. She has reservations about the legality of the acquisition and use of cannabis, and, in any event, she is a committed life-long abstainer from narcotics and drugs of all sorts…
[69]         I decline to find that the plaintiff failed to mitigate her losses by not taking medical cannabis. Dr. Hershler’s advice came after the end of what, for the reasons just stated, I consider to be a reasonable recovery period. In any event, I accept as sincere the plaintiff’s reservations about the acquisition and use of cannabis.
 

$75,000 Non-Pecuniary Assessment for "Moderate, Substantially Resolved" Soft Tissue Injuries

Adding to this site’s case-law archives dealing with ICBC soft tissue injury cases, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a moderate soft tissue injury.
In this week’s case (Aubin v. Ball) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a moderate soft tissue injury that was “substantially recovered” by the time of trial.   She continue to have some symptoms, however, and these were expected to be “here to stay“.  Despite finding that the Plaintiff  “is likely exaggerating her present difficulties to some degree” the court concluded the Plaintiff had genuine ongoing symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Baird provided the following reasons:
[105]     I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.
[106]     There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.
[107]     In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle…
[117]     With some reluctance I find that Ms. Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.
[118]     However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms. Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr. Njalsson may be “here to stay”…
[129]     In recognition of the fact that Ms. Aubin was not as active in approaching recovery as she could have been, but without penalizing her for not being as robust as some plaintiffs, a just, fair and reasonable award in this case is $75,000. The defendant must take his victim as he finds her, and in this case, the accident caused a young woman who was on track in pursuing her ambitions and goals to go off course and lose some very good years of her life. This is no trivial matter.

Appeal of Criminal Conviction Deemed Sufficient Reason to Adjourn Personal Injury Trial

Interesting reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing an adjournment of a personal injury trial when collateral criminal proceedings were ongoing.
In last week’s case (Gillespie v. Pompeo) the Defendant police officer shot and injured the Plaintiff.  The police officer was charged and convicted of aggravated assault.  He appealed the conviction.  Before the appeal was disposed of the Plaintiff’s injury claim was scheduled for trial.  The Defendant applied to adjourn the trial until the criminal matter was disposed of.  In finding this appropriate Mr. Justice Baird provided the following reasons:
[11]         Section 71 of the Evidence Act, R.S.B.C. 1996, c.124, provides that a conviction that is not subject to appeal, or from which no appeal is taken, may be admitted as evidence on a civil trial as proof that the convicted person committed the offence…
[15]         Defendant’s counsel submitted that the presently scheduled civil trial in June will involve a second full trial on precisely the same evidence and issues as those already given a comprehensive airing on the criminal trial in Provincial Court. The same witnesses will be called on the issue of liability and the same defence of justification under section 25 of the Criminal Code will be advanced.
[16]         Defendant’s counsel has conceded, quite properly, that there can be no civil trial on the question of liability if the conviction stands and all appeals are abandoned or exhausted…
[19]         As things stand, the defendant has been criminally convicted of aggravated assault. There can be no assumption at this stage that a civil trial will yield a different or more accurate result. If the conviction is upheld it will be the end of the matter for the purposes of liability, and a civil trial conducted in the interval will have been a colossal waste of judicial resources and the time, money and effort of the parties and witnesses alike. Finally, dual proceedings on the same issues and facts give rise to the spectre of inconsistent verdicts, an eventuality to be avoided in the interests of maintaining the credibility of the judicial process.
[20]         For these reasons I conclude that an adjournment of the civil trial is in the best interests of justice.

$60,000 Non-Pecuniary Assessment For Chronic Shoulder Soft Tissue Injury

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder soft tissue injury.
In this week’s case (Jorgensen v. Coonce) the Plaintiff was injured in 2009 when the vehicle in which he was a passenger left the roadway and collided with some trees.  The defendant admitted fault.
The Plaintiff suffered a soft tissue injury to his shoulder which remained symptomatic at the time of trial and was expected to pose continued difficulties in the future.  In assessing non-pecuniary damages at $60,000 Mr. Justice Baird provided the following reasons:
[90]         In short, I conclude that the plaintiff suffers from chronic pain from a soft tissue injury in the area of his right shoulder sustained in the May 2009 accident. This injury is not related to the physical or functional deficits that the plaintiff continued to experience as a result of the April 2006 accident for which, as I have noted, the present defendant is not liable.
[91]         The May 2009 injury has impacted the quality of the plaintiff’s life in material measure. He has been unable to pursue his sporting and recreational activities. Worse still, his relationship with his children has suffered because of his physical limitations. He has also been affected, not only in his enjoyment of work, but in his capacity to perform his work adequately, and on all of the evidence I consider it possible that this reduced capacity played a role in his dismissal from long-term, secure, well-paying employment in the paving business…
[106]     Having due regard to the often cited factors articulated in Stapley v. Hejslet, 2006 BCCA 34 at paragraph 46 and the observations of the Supreme Court of Canada in the Lindal v. Lindal, [1981] 2 SCR 629 at p. 637, and employing a discount in light of my findings respecting the plaintiffs pre-existing injury or condition for which the present defendant is not responsible, I have decided that an appropriate award for general damages in this case is $60,000

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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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