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Tag: Mr. Justice Bowden

Landlords Found Not Liable for Tenant Dog Attack

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, dismissing an injury claim following a dog attack.

In this week’s case (Ali v. Samra) the Plaintiff was walking to a park when a pitbull left a nearby property and attacked him in an alley where he was walking.  The incident was described as follows:

On May 3, 2015, the plaintiff left his house to meet his friends at a nearby school playground. As he had done on many occasions, he walked down the alley at the back of his house and reached the corner of the alley at 98A Avenue and 132A Street in Surrey, British Columbia, when a brown pit bull came from a nearby property at 13232 – 98A Avenue, (the “Property”), and ran towards him. The plaintiff ran away from the dog but it jumped on him and bit him severely on the back and under an arm. He had done nothing to provoke the dog.

The Plaintiff sued the homeowner where the dog came from along with tenants who supposedly owned the dog.  At the time of the attack the homeowners did not occupy the residence rather it was leased out to a tenant who sub leased the property to recovering heroin addicts.  The terms of the homeowners lease specified that no pets were permitted.

The Plaintiff sued the homeowner under the Occupier’s Liability Act and under the doctrines of negligence and scienter.  All three claims failed with the Mr. Justice Bowden providing the following reasons:

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Motorist Found Faultless For Crash Despite Entering Intersection on Yellow Light

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault for an intersection crash involving a left turning vehicle and a vehicle driving straight through the intersection on a yellow light.
In today’s case (Krist v. Bock) the Plaintiff entered an intersection on a green light intending to turn left.  The Plaintiff committed to the intersection but oncoming traffic was too heavy so the Plaintiff had to wait.  After the light turned yellow the plaintiff proceeded with his turn but was then struck by the Defendant’s vehicle.
The Plaintiff alleged the Defendant was to blame for entering the intersection on a yellow.  Mr. Justice Bowden disagreed and dismissed the Plaintiff’s claim finding him fully at fault for the crash.  In reaching this decision the Court provided the following reasons:

[17]         The defendant was aware of the plaintiff’s vehicle in the left-hand turn lane when he faced the yellow light and continued into the intersection without reducing his speed because of his concern that his vehicle would skid into the intersection. The fact that the defendant had noticed the plaintiff’s vehicle in the left turn lane before he initiated a left turn and did not reduce the speed of his vehicle does not constitute negligence. The presence of the plaintiff’s vehicle in the left turn lane did not cast a duty on the defendant to take extra care and he was entitled to presume that the plaintiff would not initiate a turn until his vehicle was through the intersection. The defendant was entitled to assume that the plaintiff would comply with the rules of the road and not commence a left turn until it was safe to do so.

[18]         I acknowledge that the defendant was warned by the police for entering the intersection in the face of a yellow light however I have accepted his evidence that because of the wet pavement, he could not have stopped safely and thus complied with s. 128 of the MVA.

[19]         In my view, the plaintiff proceeded to turn left when the defendant’s vehicle was in the intersection or so close as to constitute an immediate hazard. The evidence does not indicate that the plaintiff took any care to determine if a left turn could be made safely. I do not accept the plaintiff’s evidence that he commenced his left turn when the traffic light was red. I accept the defendant’s evidence that the light had turned yellow when he entered the intersection and at that point in time the plaintiff had initiated a left turn.

[20]         In his examination for discovery the plaintiff said that he did not see the defendant’s vehicle until it was 20 feet away. I do not accept his explanation that the defendant’s vehicle was in the curb lane and changed into the center lane just before the accident occurred. He did not see the defendant’s vehicle make such a lane change and just surmised that was what he had done. The plaintiff did not mention this suggested lane change by the defendant in his statement to ICBC on January 3, 2013 nor in his examination for discovery on January 29, 2016.

[21]         In my view, the plaintiff should have seen the defendant’s vehicle as it was entering the intersection but failed to do so. I reject his explanation that the defendant’s vehicle had come from the curb lane into the center lane just before the accident occurred.

[22]         I accept the defendant’s evidence that when the traffic light turned yellow in the rainy conditions he could not stop safely without sliding in the intersection. He gave his evidence in a straight-forward and honest manner. There is no contradictory evidence. Accordingly, the defendant met the standard of care provided in s. 128(1) of the MVA.

[23]         In my view, when the defendant entered the intersection he was the dominant driver and the plaintiff was in the servient position. I find that when the defendant driver entered the intersection, he did not have a sufficient opportunity to avoid the collision with the plaintiff’s vehicle after the plaintiff had initiated a left turn disregarding his statutory duty to yield to the defendant whose vehicle posed an immediate hazard.

$65,000 Non-Pecuniary Assessment for Partly Disabling Mechanical Neck and Back Pain

Written by admin on . Posted in Uncategorized.

Update September 28, 2018 – Today the BC Court of Appeal published reasons re-assessing the non-pecuniary award in the below case at $85,000.
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Reasons for judgement were published today by the BC Supreme Court, New Westminster registry, assessing damages for partly disabling injuries sustained in a collision.
In today’s case (Riley v. Ritsco) the Plaintiff was involved in a 2011 collision.  The Defendant was found fully liable.  Following the collision the plaintiff suffered from chronic neck and back pain with associated symptoms and a poor prognosis for full recovery.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bowden provided the following reasons:

[42]         In summary, Dr. Adrian opined as follows:

1.     The mechanical neck, mid and lower back pain experienced by the plaintiff are consistent with suffering an injury to the spinal tissue and are causally related to the motor vehicle accident.

2.     The headaches experienced by the plaintiff are triggered by neck pain and related to his neck injury.

3.     The plaintiff’s left shoulder pain symptoms are causally related to the accident.

4.     The plaintiff’s left knee pain symptoms are causally related to the accident.

5.     While the plaintiff experiences psychological and cognitive symptoms, Dr. Adrian deferred to specialists in psychiatry to comment on the nature of those symptoms.

6.     As several years have passed since the accident, the prognosis for further recovery from the injuries suffered in the accident into the future is poor.

7.     The plaintiff will probably continue to experience difficulty performing activities that place physical forces onto his neck, back, left shoulder and left knee. He will probably continue to experience difficulty performing employment, recreational and household activities involving prolonged sitting, standing or walking, awkward spinal positioning, heavy or repetitive lifting, stooping, repetitive neck motion, repetitive reaching, climbing or jarring activities.

8.     The plaintiff’s physical limitations are unlikely to improve into the future and he is permanently partially disabled due to injuries suffered in the accident.

[43]         The plaintiff has undergone a variety of treatments for his injuries following the accident including 134 physiotherapy treatments, 64 massages, acupuncture and chiropractic treatments. This has given him some relief but the pain symptoms referred to by Dr. Adrian continue.

…

[57]         I accept Dr. Adrian’s description of the injuries suffered by the plaintiff as a result of the collision. It appears that the plaintiff has endured pain of different levels and at different times during the years following the accident. He was totally disabled from work for about 14 months and he will likely continue to experience some pain in the areas of his body where he was injured for the remainder of his life. He is described by Dr. Adrian as suffering a permanent partial disability as a result of the accident. His injuries have negatively affected his ability to work as a millwright as well as a number of his recreational activities…

[62]         While Dr. Adrian opines that the plaintiff would find certain functions at work to be difficult he did not say that the plaintiff was unemployable. There is also insufficient evidence, and none from an expert, to establish that the plaintiff suffered psychological damage from the accident. Indeed, Dr. Adrian defers to specialists such as a psychiatrist regarding the nature of the plaintiff’s psychological state.

[63]         Unlike Mr. Mandra, the plaintiff in the case at bar did not present evidence from an occupational therapist or a psychiatrist.

[64]         Considering the factors referred to in Stapley v. Hejslet and the particular circumstances of the plaintiff I have concluded that an award of $65,000 is appropriate for non-pecuniary damages.

Plaintiff Stripped of Trial Costs Following Judgement Below Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released today stripping a plaintiff of trial costs and further ordering the Plaintiff to pay the Defendants trial costs after failing to beat a defense formal settlement offer at trial.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.
Prior to trial ICBC offered to settle the claim for $70,000.  The Plaintiff declined this offer and proceeded to trial where damages of just over $32,000 were assessed.
In finding the pre trial offer reasonable and attaching costs consequences for failing to beat it Mr. Justice Bowden provided the following reasons:

[8]             The rules on costs are intended to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Hartshorne v. Hartshorne, (2011 BCCA 29)

[9]             In considering whether the offer to settle was one that ought reasonably to have been accepted the circumstances that existed at the time the offer was made should be considered rather than the award that was made using hindsight.

[10]         At the time the offer was made there is no suggestion that the plaintiff was not ready for trial. By that time examinations for discovery would have been completed and documents exchanged along with expert medical reports. In my view, the parties were in as good as a position as they would ever be to assess the relative strengths and weaknesses of the case. (See the comments of Fleming J. in White v. Wang, 2015 BCSC 1080 at para. 10)

[11]         The plaintiff had four business days and a weekend to consider the offer of the defendants and presumably discussed the merits of accepting the offer with his counsel. The defendants’ offer was rejected and no counter-offer was made.

[12]         Fleming J. referred to comments by Griffin J. in Bevacqua v. Yaworski, 2013 BCSC 29, regarding the process at para. 8:

In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards. It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial. It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating. Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.

[13]         In that case the plaintiff was deprived of costs when the defendant delivered an offer to settle on the eve of trial.

[14]         While I understand that the plaintiff attended his daughter’s wedding on the weekend following the making of the offer, there is no suggestion that the plaintiff and his counsel had any difficulty discussing the offer before it expired.

[15]         The offer by the defendants was more than twice the amount that was awarded to the plaintiff.

[16]         As to the relative financial circumstances of the parties other than understanding that the plaintiff has not been employed for some period of time there was no evidence upon which to determine what the financial impact of the cost award sought by the defendants would be on the plaintiff.

[17]         Having considered the factors mentioned and the circumstances of this case, I have concluded that the plaintiff should be deprived of costs from the date of the offer to settle by the defendants until the end of the trial and costs shall be awarded to the defendants for that period.

 

$50,000 Non-Pecuniary Assessment for 7 Year Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

Update June 8, 2017 – Today the BC Court of Appeal ordered a new trial in this case finding the trial judge made several errors. 
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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.
In today’s case (Gordon v. Ahn) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered soft tissue injuries to her low back.  Some symptoms persisted to the time of trial and were expected to linger to “ for some period of time into the future“.
In assessing non-pecuniary damages at $50,000 Mr. Justice Bowden provided the following reasons:
63]         There is no dispute that the plaintiff suffered physical injuries from the motor vehicle accident in August 2009. The defendants accept that the plaintiff suffered soft tissue injury to her neck, back and shoulder areas. The defendants also accept that the plaintiff suffered a disc herniation which came on about one month after the accident but appeared to improve clinically by January 2010…
[82]         While I find that the plaintiff’s physical injuries had largely resolved by the summer of 2011, I accept Dr. Badii’s opinion that she will experience some degree of lower back pain for some period of time into the future. However, it does not appear that the lower back pain will limit her functioning in a material way either at work or recreationally…

[111]     In light of my conclusions regarding the plaintiff’s injuries, including their severity, the resolution of the most severe injuries, the impact of her injuries on her lifestyle and general well-being, I have concluded than an award of $50,000 is reasonable.

[112]     In arriving at that amount I have considered that the plaintiff failed in some respects to mitigate her damages. She discontinued physiotherapy and did little by way of an exercise program as recommended by her treating physicians. She also did not take anti-depressants as recommended and increased her use of marihuana. However, I do accept that the plaintiff did take some steps that may have contributed to her substantial recovery in 2011.

$30,000 Non-Pecuniary Assessment for Aggravation of Chronic Pain

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of a long standing chronic pain disorder.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.  In assessing non-pecuniary damages at $30,000 Mr. Justice Bowden provided the following reasons:

[52]        I am not prepared to attach much weight to the plaintiff’s description of the change in his condition following the 2011 accident without corroboration from someone other than Ms. Ben-Yosef and their son.

[53]        The evidence shows that the majority of the symptoms that the plaintiff attributes to injuries from the 2011 accident probably were present before that accident. The expert evidence is that the plaintiff was suffering from chronic pain syndrome before the 2011 accident. It appears that he was taking anti-inflammatory drugs before that accident as well as medication for hypertension and pain.

[54]        The 2011 accident was not significant. While the plaintiff was knocked down in a cross walk, he described the event to his family doctor as being “bumped”. He said that he got up, exchanged information with the defendant and then continued on his way to do some shopping before going home.

[55]        Nevertheless, I accept that the plaintiff suffered some soft tissue injuries to his lower back and left hip and that the 2011 accident caused some aggravation to his pre-existing chronic pain…

[60]        While I accept that the plaintiff’s pre-existing condition was somewhat aggravated by the 2011 accident, he had developed chronic pain syndrome before that accident presumably following his injuries in the 1998 accident. Some of his continuing symptoms also appear to be related to the degeneration which has occurred in his spine which is unrelated to the 2011 accident.

[61]        It is difficult to differentiate the impact of the 1998 accident and the 2011 accident on the plaintiff’s quality and enjoyment of life. It appears that the 1998 accident left him unable to work, caused him intermittent pain that ultimately became chronic and limited his activities. The 2011 accident aggravated his condition somewhat but the degree of aggravation cannot be determined with any certainty.

[62]        I have concluded that in the circumstances of this case and considering the factors in Athey, an award of $30,000 is appropriate.

$20,000 Non-Pecuniary Assessment for 17 Month Long Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing $20,000 in non-pecuniary damages for recovered soft tissue injuries.
In today’s case (Scott v. Hoey) the Plaintiff was involved in a 2006 collision caused by the Defendant.  The Plaintiff was 13 years old at the time of the collision and alleged she sustained injuries which permanently impacted her and sought significant damages.  The Court rejected much of the Plaintiff’s claim noting credibility concerns.  The Court did accept that the collision cause soft tissue injuries which fully resolved in 17 months.  In assessing non-pecuniary damages of $20,000 Mr. Justice Bowden provided the following reasons:

[169]     In my view the facts and reasoning of Barrow J. in Jensen v. Felker, 2008 BCSC 541, suggest that the amount of non-pecuniary damages awarded in that case approximate those that should be awarded in the case before me. After reviewing a number of authorities where short term injuries produced symptoms in the plaintiffs for 12 to 14 months, Barrow J. awarded non-pecuniary damages of $18,000.

[170]     While the evidence supports a finding that the plaintiff’s injuries resolved within a period of about six months following the accident I am prepared to assess non-pecuniary damages on the basis that some of her symptoms may have continued until November 2007, which is a period of about seventeen months after the accident.

[171]     I award the plaintiff $20,000 in non-pecuniary damages.

$90,000 For Lingering Soft Tissue Injuries Leading to Chronic Pain Disorder

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Adding to this site’s archived cases addressing non-pecuniary damages for chronic pain, reasons for judgement were released today dealing with such a condition following a motor vehicle collision.
In today’s case (Roth v. Hes) the Plaintiff was involved in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained soft tissue injuries which led to a chronic pain condition.  In assessing non-pecuniary damages at $90,000 Mr. Justice Bowden provided the following reasons:

[82]         The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred.

[83]         The plaintiff’s lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband’s hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff’s condition will improve and she will gradually return to some of her hobbies around her property.

[84]         I do not accept the plaintiff’s argument that the garden and animals cared for by her and her husband were more than a hobby. It matters not that the garden and animals provided some food for them. The use of their property by the plaintiff and her husband was simply a hobby and I so find.

[85]         Before the accident the plaintiff enjoyed a number of outdoor activities. Since the accident she has not been able to participate in physically demanding activities like motorcycle riding, archery and hiking. There is the prospect that she may find less physically demanding but enjoyable hobbies.

[86]         The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident.

[87]         Both parties provided me with a number of cases dealing with similar facts that supported the amount of damages that they consider to be appropriate. In the end however, each case must be decided on its own facts.

[88]         Considering the factors enumerated in Stapley, I find $90,000 to be an appropriate award of non-pecuniary damages.

"Use of Vacation Time Does Not Represent Lost Income" in ICBC Claim

Written by admin on . Posted in ICBC Wage Loss.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, holding that used vacation time following an injury is not compensable as lost income in a personal injury lawsuit.
In today’s case (McCartney v. McArthur) the Plaintiff missed a week of work due to collision related injuries.  He used up vacation time during this period and was paid accordingly by his employer during the week off.  In finding that no claim for loss of income for this period can be advanced in his tort claim Mr. Justice Bowden provided the following brief reasons:

[82]         At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.

[83]         The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.

[84]         While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.

$75,000 Non-Pecuniary Assessment for Chronic Aggravation of Pre-Existing Neck Symptoms

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic aggravation of a pre-existing neck injury.
In today’s case (McCartney v. McArthur) the Plaintiff was involved in a 2010 rear end collision.  The Defendant admitted fault for the crash.  The 62 year old Plaintiff had a 20 year history of occasional neck complaints.  The collision aggravated these and led to chronic symptoms which impacted the Plaintiff’s functioning.  In assessing non-pecuniary damages at $75,000 Mr. Justice Bowden provided the following reasons:
69]         I am satisfied that the defendant’s negligence, which has been admitted, contributed to the injuries complained of by the plaintiff. While the plaintiff’s pre-existing condition resulted in symptoms in his neck area that had some similarity to those he experienced after the accident, the degree of pain experienced by him clearly increased after the accident and, I find, became chronic in nature. In particular, Dr. Gittens testified that the plaintiff’s pre-existing condition, involving some degenerative changes in his spine, was aggravated by the accident. He said that his pain, which he described as neuropathic, occurs after the underlying trauma has resolved and is extremely difficult to resolve. He said it may be a permanent condition. In my view the evidence establishes that the symptoms suffered by the plaintiff after the accident were different and worse than before the accident. His neck condition was significantly aggravated by the accident…

[76]         I have concluded that the plaintiff suffered aggravation to his neck pain as a result of the accident and his pain has become chronic in nature. For the first time, the pain that the plaintiff suffers imposes some functional limitations on him.

[77]         The evidence also establishes that the plaintiff went from an outgoing pleasant person to someone who was easily irritated by other people. This has interfered with his ability to work effectively as a cabinet salesman.

[78]         I am satisfied that the accident has negatively affected the quality and enjoyment of the plaintiff’s life and that may continue indefinitely. He will likely continue to suffer pain, together with the associated deleterious effects on his enjoyment of life.

[79]         After considering the relevant case law referred to by counsel and keeping in mind that the award in each case is very dependent upon the unique facts of the case, I award the plaintiff $75,000 in non-pecuniary damages.

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