Tag: Mr. Justice G.C. Weatherill

Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

Written by ERIK MAGRAKEN on March 10, 2020. Posted in Occupier's liability claims.

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense. Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable. Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant. The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident. The Court disagreed and dismissed the claim. In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

Indivisible Injuries With Pre and Post “Minor Injury” Crashes

Written by ERIK MAGRAKEN on February 1, 2020. Posted in ICBC Minor Injury Caps.

What do BC Courts do with an indivisible injury claim where the injury arose in the pre ‘minor’ injury caps era and was aggravated after the ‘minor’ injury law came into force?

The first case to address this question found that, in line with the reasoning of Bradley v. Groves, the initial tort feasors can be held liable for the whole of the indivisible loss.

In the recent case (Rabbani-Nejad v. Sharma) the Plaintiff was injured in three collisions. She sued for the first two and liability was admitted. Both these claims preceded the ‘minor’ injury cap. The third crash occurred in the ‘minor’ injury cap era and no lawsuit was started.

The Court found all three crashes contributed to some extent to her injuries. The Court found the first two crashes caused an indivisible injury. The third crash caused some new injury in addition to aggravating the indivisible injury. To the extent of the latter the court found the Defendants were liable for the full extent of the losses from the indivisible injuries including the aggravation from the third crash. In reaching this conclusion Mr. Justice G.C. Weatherill provided the following reasons:

Defendant Not Justified in Punching Mouthy and "Belligerent" Plaintiff in the Face

Written by admin on June 29, 2018. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Smithers Registry, demonstrating that punching someone in the face is rarely the legally acceptable solution to a problem.
In the recent case (Azak v. Chisholm) the Defendant was a contractor building a retaining wall on property neighbouring the Plaintiff’s. A verbal confrontation between the Plaintiff and Defendant occurred with the court finding “the plaintiff confronted Chisholm about the Project in a belligerent manner that Chisholm did not like” and specifically with the Plaintiff calling the Defendant “a ‘f-ing asshole” and a “white piece of shit”.
The Defendant gave evidence as follows surrounding the altercation:
Chisholm told the plaintiff that “we are going to go to work and what are you going to do about it?” The plaintiff responded by saying: “you’re going to find out right now” and that Chisholm was a “white piece of shit”. Chisholm testified that he perceived this as a threat and he did not want to find out what the plaintiff had in mind. Chisholm said “I’ve had enough”, jumped down from the retaining wall and hit the plaintiff in the face.
The punch resulted in a fractured cheek and nose that requires surgical correction.
The Plaintiff successfully sued for damages. In rejecting the Defendant’s claim of self defense and noting the burden on a defendant to successfully raise the defense Mr. Justice Weatherill provided the following reasons:

[70] I find that, regardless of the harassment and insults the plaintiff had levied at Chisholm and regardless of how long the plaintiff’s difficult behaviour had been ongoing, Chisholm had no right or justification to do what he did. I find that, whatever threat Chisholm perceived when he was first confronted by the plaintiff on the morning of July 2, 2013 had eased well before the Assault took place. I do not accept that Chisholm was either afraid for his own safety or that of his co-workers. Chisholm could easily have either removed himself from the property or had Nyce mediate the situation, as he had done many times previously. Instead, I find that Chisholm simply and regrettably let his anger and frustration get the better of him.

[71] I find that Chisholm’s reaction was unreasonable and totally disproportionate to the circumstance he was in and I reject his claim that he acted in self-defence. No reasonable person in Chisholm’s shoes would have felt physically threatened by what the plaintiff had said.

[72] I find that the plaintiff has demonstrated, on the balance of probabilities, that Chisholm committed the tort of battery upon him, that Chisholm failed to demonstrate he was acting in self-defence and, therefore, Chisholm is liable to the plaintiff in damages.

$75,000 Non-Pecuniary Assessment for Onset of Symptoms in Pre Existing Scoliosis

Written by admin on April 21, 2018. Posted in Uncategorized.

Reasons for judgment were published this week by the BC Supreme Court, Kelowna Registry, assessing damages for a collision causing the onset of symptoms in pre-existing asymptomatic scoliosis.
In the recent case (Cyryl v. George) the Plaintiff was injured in a collision when she was 17 years old. Liability was admitted by the at fault motorist. The collision resulted in several injuries including pain in her previously asymptomatic spine. The Plaintiff alleged that the collision went on to cause a chronic pain syndrome but the Court rejected this assertion. In assessing non-pecuniary damages at $75,000 Mr. Justice Weatherill provided the following reasons:

[104] I find, on the whole of the evidence, the plaintiff had an asymptomatic scoliosis condition as well as a 1.5 cm leg length discrepancy that became activated and aggravated by the Collision. I find that the Collision caused the plaintiff to suffer the following injuries: several contusions, abrasions and lacerations to her face, headaches, a bitten tongue and soft tissue injuries to her jaw, neck and back.

[105] I also find that for approximately two months immediately following the Collision, the plaintiff continued to suffer considerable pain and discomfort in her neck, jaw and back as well as headaches. I find that, while some pain and discomfort has persisted since then, it is not as prevalent and debilitating as the plaintiff has suggested. Rather, I find that her pain symptoms flare up from time to time depending upon levels of activity and that she is able to tolerate her symptoms and cope well with the use of over-the-counter pain medication such as Advil. I find that the only restrictions on the plaintiff’s activities are related to her symptom tolerance.

[106] On the whole of the evidence, I am unable to find that the plaintiff has demonstrated a loss in cognitive function as a result of the Collision or that her ongoing symptoms have developed into Chronic Pain Syndrome…

[114] In my view, the appropriate award of non-pecuniary damages in this case is $75,000.

Plaintiff "Antics" During Cross Examination Undermine Injury Claim

Written by admin on September 9, 2016. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting substantial aspects of a personal injury claim due in part to concerns about plaintiff credibility.
In today’s case (Siddall v. Bencherif) the Plaintiff was injured in 2 separate collisions that the Defendants accepted fault for. Much of her claim was rejected at trial where the presiding judge raised concerns about her credibility and “antics” while testifying. In concluding that “the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her” Mr. Justice G.C. Weatherill provided the following reasons:
[183]     A plaintiff who accurately describes his or her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable.
[184]     Regrettably, that did not occur in this case. The plaintiff was not particularly forthcoming during her evidence-in-chief. Significant aspects of her story were not revealed until cross-examination at which point she was evasive and took great pains to minimize the history of her pre-Collisions physical and emotional issues. Despite insisting that her memory was “good”, on several occasions she had to be taken to her relatively recent examination for discovery transcripts before she was prepared to recall her previous evidence. She had difficulty agreeing that her income tax returns reflected her actual income because she could not remember whether she had worked more than what they reflected. Although the details of her many pre-Collisions psychological and psychiatric issues were set out in voluminous historical clinical records, including the answers to questionnaires in the plaintiff’s own handwriting, she was either unable to recall, or unwilling to admit to them. She was also unable to recall significant portions of the clinical history set out in the various expert reports filed in this action that had been provided by the plaintiff herself.
[185]     When clinical records or other documents were put to the plaintiff that contradicted her evidence, she insisted that the documents were likely in error or that she had been misinterpreted or misunderstood.
[186]     The poor quality of the plaintiff’s memory at times when it suited her is at odds with her obvious high level of intelligence.
[187]     During her cross-examination, the plaintiff became increasingly evasive, argumentative and adversarial. She often launched into lengthy, rambling answers that were replete with speculation and devoid of factual foundation. She repeatedly played down her pre-Collisions symptoms as minor and inconsequential and emphasized her post-Collisions symptoms as new and debilitating.
[188]     Although the plaintiff appeared to have no difficulty reviewing documents and answering questions during her direct examination, she requested a recess early in her cross-examination, complaining of having difficulty extending her arms to read a one page document due to pain in her arms and shoulders. However, she did not indicate any further difficulty with her arms during the remainder of her lengthy cross-examination, interrupted as it was by other witnesses over four days. Indeed, throughout her cross-examination she frequently used her arms to gesture during her answers, as people typically do when attempting to make a point. She continually alternated between standing and sitting in the witness box, which is in noticeable contrast to Ms. Tencha’s observations during the Functional Capacity Evaluation that the plaintiff was capable of engaging in casual sitting for 1 hour and 40 minutes.
[189]     The plaintiff’s antics and demeanour during cross-examination, as well as her numerous and vehement attempts to convince the court of her ordeal, evoked the oft-quoted line from Hamlet: “the lady doth protest too much”.
[190]     I find that, overall, the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her, which I find she exaggerated. Unfortunately, I am unable to give her evidence in that regard much weight.
[191]     As a consequence, I have not found the opinion evidence of the medical experts of much assistance. That is not because the experts are lacking in the necessary experience and expertise in their respective fields. Indeed, they are all highly qualified. Rather, it is because medical experts necessarily take a patient’s complaints at face value and then offer an opinion based on those complaints. Here too they relied for their respective opinions to a significant degree on what they were told by the plaintiff without the benefit, as the court had, of a thorough and lengthy cross-examination of the plaintiff during which her self-reports and evidence generally were tested.
[192]     In contrast to the plaintiff, ….gave his evidence in a down-to-earth and forthright fashion. He was clear, candid, animated, articulate and passionate about his testimony. I find that his evidence was credible and generally reliable.

Ikea's "Sophisticated" Washroom Cleaning Policies Derail Slip and Fall Lawsuit

Written by admin on May 12, 2016. Posted in Occupier's liability claims.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a slip and fall lawsuit against Ikea.
In today’s case (Dudas v. Ikea Ltd.) the Plaintiff slipped and fell in the washroom and speculated the cause of her fall was water left behind by Ikea’s janitorial contractor. The Plaintiff sued both Ikea and the janitorial contractor.
Mr. Justice Weatherill dismissed the lawsuit finding the plaintiff’s speculation as to the cause of her fall was insufficient to prove liability but regardless that the washroom cleaning policies, which were followed, were “sophisticated, thorough and detailed” and these were sufficient in defeating the Plaintiff’s allegations of negligence. In dismissing the claim the Court provided the following reasons:

42] However, even if the plaintiff had proven on a balance of probabilities that she slipped on water left on the floor by Ms. Kaur while the plaintiff was in the washroom stall, she also has the onus of establishing on the balance of probabilities that she did so as a result of SBS, as an occupier, failing to meet the reasonableness standard required of it under s. 3(1) of the Act. In my view, the plaintiff failed to do so.

[43] Mr. Hay, SBS’s Chief Executive Officer, gave detailed evidence regarding the systems it had in place at Ikea for the provision of its maintenance and janitorial services and the training of its staff. Those systems, policies and procedures are by any measure sophisticated, thorough and detailed. It is hard to imagine reasonable steps that could have been implemented to improve them.

[44] The plaintiff submits that it is apparent from the SBS Incident report that Ms. Kaur, the cleaner in question, knew that someone was in the washroom stall while she was mopping the floor, and that it was unreasonable for SBS not to have an established protocol in place for the cleaner to verbally alert patrons who were using washroom stalls to the fact that the floor outside of the stall was being mopped.

[45] Mr. Hay agreed that there is no such protocol in place. He testified that, in such situations, SBS relies on the noise generated by the cleaners during the cleaning process.

[46] The plaintiff submits that the failure to have such a protocol was a breach of SBS’s obligations under s. 3 of the Act. I disagree. There is no evidence that such a policy exists anywhere in the industry. Moreover, it raises policy issues relating not only to privacy, but also equality considerations in terms of the potential for hearing persons being preferred over non-hearing persons.

[47] This incident took place in a ladies washroom. The potential for some dampness on the floor ought reasonably to have been expected by anyone using it. The mere presence of some water on the floor does not constitute an objectively unreasonable risk of harm: Zary v. Canada Mortgage and Housing Corp., 2015 BCSC 1145 at para. 57.

$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

Written by admin on April 19, 2016. Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011. Fault was admitted on behalf of the rear driver. The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police. The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.
In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:

[119] The plaintiff is 39 years old.

[120] The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA. That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder. He also experienced the onset of migraine headaches.

[121] I accept the plaintiff’s evidence that these MVA-related injuries continue to persist. I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse. Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122] I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners. This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131] Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA. The MVA caused him to suffer an upper body soft tissue injury which continues to persist. His prognosis for recovery continues to be unknown.

[132] After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139] The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs. I am satisfied that a deduction of 20% is appropriate.

[140] Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.

Plaintiff Awarded Full Costs and Disbursements Despite 25/75 Liability Split

Written by admin on October 14, 2015. Posted in BC Supreme Court Costs Cases.

Helpful reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff full costs and disbursements despite a split of liability.
In today’s case (Ekman v. Cook) the Plaintiff suffered serious injuries in a collision for which fault was disputed. Liability and quantum were severed and at the liability trial the Court found that the Plaintiff was 75% responsible for the crash with the Defendant bearing the balance of blame.
The parties eventually settled for $135,000 plus taxable costs and disbursements but then could not agree on what these were. ICBC argued the Plaintiff is only entitled to 25% of these on the basis of the liability split. Mr. Justice Weatherill disagreed and in awarding full costs to the Plaintiff provided the following reasons:

[7] Section 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333, sets out what is often referred to as the “usual rule.” It provides as follows:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss….

28] In my view, an award to the plaintiff of only 25 percent of his taxable costs and disbursements in this case will result in an injustice. The defendants forced the plaintiff to trial and to have to incur 100 percent of those costs and disbursements in order to obtain any relief whatsoever.

[29] An award of only 25 percent of the plaintiff’s costs when 100 percent of his costs were required to be incurred to achieve the result that he did would have a profound effect on his overall recovery. In my view, it is appropriate that the defendants be liable to pay those costs.

[30] Here, the plaintiff achieved substantial success, that, as I have said, would be defeated if costs were awarded in accordance with the usual rule.

[31] Accordingly, I am exercising my discretion in favour of the plaintiff, and I am awarding him 100 percent of his taxable costs and disbursements in this matter.

[32] Had the plaintiff taken the position that he was not contributorily negligent to a significant degree, or had the defendants conceded the possibility of some negligence on their part, it is possible that I would have exercised my discretion in a different fashion. The plaintiff is entitled to his costs of this application.

[33] I do want to thank both counsel for their very thorough and helpful submissions.

Double Costs Denied Following Modest Besting of Formal Settlement Offer

Written by admin on August 6, 2014. Posted in BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, denying a Plaintiff double costs after modestly beating a pre-trial formal settlement offer.
In today’s case (Barnes v. Lima) the Plaintiff was injured in a collision and sued for damages. The morning before trial the Plaintiff tabled a $60,000 formal settlement offer. ICBC rejected this offer and proceeded to trial where damages just over $67,000 were assessed. The Plaintiff applied for double costs although the Court did not award these finding it was reasonable not to accept the last minute offer. In reaching this decision Mr. Justice Weatherill provided the following reasons:
[2]             The action arose from injuries sustained by the plaintiff in a motor vehicle accident. It was commenced on September 18, 2012. It was a fast track action commenced under Rule 15-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”). The trial was heard on June 24 to 26, 2014. It lasted 3 days. My Reasons for Judgment were pronounced on July 11, 2014, indexed as 2014 BCSC 1282. The plaintiff was awarded $67,214.19.
[3]             On June 23, 2014, the morning before commencement of the trial, the plaintiff communicated a formal offer to settle the claim for $60,000 plus reasonable disbursements. The offer was stated to be open for acceptance until that same afternoon at 4 p.m. The defendant did not respond to that offer, although it had responded to earlier settlement offers from the plaintiff including by making his own formal offer to settle for $39,651.69 plus funding for 12 active rehabilitation sessions…
[9]             I have considered how the offer compares to the amount ultimately awarded after trial. The award at trial was only $7,214.19 more than the plaintiff’s offer. As matters transpired, it turned out to have been a reasonable offer, although it was a short-fuse offer made on the eve of trial. It should have been made weeks earlier. Be that as it may, it was straight forward and contained no ambiguities. Counsel for the defendant candidly acknowledged that his client had sufficient time before the trial in which to consider it. However, the fact that the award at trial was greater than the offer is not determinative: Ward v. Klaus, 2012 BCSC 99 at para. 46. The reasonableness of a decision not to accept an offer to settle must be assessed not by reference to the award that was ultimately made but rather the circumstances existing when the offer was open for acceptance: Ward, at para. 36.
[10]         On the eve of the trial, the defendant had a legitimate defence to the plaintiff’s claim, particularly his claim for loss of capacity which in his earlier communications to the defendant the plaintiff had indicated was significant. The plaintiff did not break his settlement offer into its components and provided the defendant with no ability to assess how much of it was to compensate the plaintiff for his loss of capacity claim. At the time the offer was communicated, there was a reasonable possibility that the plaintiff would not recover anything for that claim, which ultimately proved to be the case. It was reasonable for the defendant to wish to test the plaintiff’s position that his inability to work overtime at Carter Motors was due to the accident and not to other factors such as his marriage, particularly in the absence of supporting documentation.
[11]         Moreover, most of the plaintiff’s injuries were soft-tissue in nature. He had a pre-existing right shoulder injury. There were live issues regarding whether the plaintiff’s T-4 vertebra fracture had healed and, if so, when, as well as the plaintiff’s credibility relating to the extent that his injuries had affected his life. Parties should not be unduly deterred from bringing meritorious, but uncertain, defences because they fear a punishing costs order: Currie v. McKinnon, 2012 BCSC 1165 at para. 20.
[12]         In addition, the plaintiff provided the defendant with several photographs of the plaintiff’s carpentry skill but gave no explanation for how he intended to rely upon those photographs until after his settlement offer had expired.
[13]         The court has a broad discretion when determining the issue of costs: Ward at para. 33.
[14]         In my view, having considered all of the foregoing circumstances, the offer was not one that the defendant ought reasonably to have accepted.

Informal Settlement Offers Revoke Prior Formal Settlement Offers

Written by admin on February 11, 2014. Posted in BCSC Civil Rule 9. 63 Comments on Informal Settlement Offers Revoke Prior Formal Settlement Offers

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that when a party who made a formal settlement offer under the Rules of Court tenders a subsequent informal settlement offer the initial offer is withdrawn.
In today’s case (Arsenvoski v. Bodin) the Defendants issued a formal settlement offer. After some counter offers the Defendants rejected the Plaintiff’s offers and responded that “my clients would, however, accept a Consent Dismissal Order in exchange for a waiver of their costs” (an offer less generous than their formal offer).
The Plaintiff then attempted to accept the formal offer. Mr. Justice Weatherill confirmed that the old offer was no longer valid finding that the common law applied. In reaching this conclusion the Court provided the following reasons:
[12]         This is a case of first instance under Rule 9-1. All of the cases relied upon by plaintiff’s counsel were in the context of the Rule 37, which expressly provided for how a formal offer to settle could be withdrawn before acceptance. The one exception is the decision of Madam Justice Fitzpatrick in Janzen where she found that, although there had been a clear and unequivocal rejection by the plaintiff of the defendant’s counter-offer, there had not been a clear and unambiguous revocation by the plaintiff of her earlier formal settlement offer. In that case, the plaintiff had not made a new settlement offer.
[13]         Here, the defendants’ Second Offer stated: “My clients would, however, accept a Consent Dismissal Order in exchange for a waiver of their costs”. Those words amounted to a new settlement offer. There was nothing unclear or unequivocal about them.
[14]         I agree with defendants’ counsel that in the absence of language in Rule 9-1 regarding how and when a formal settlement offer is withdrawn, the common law applies.
[15]         I do not accept the argument that a formal settlement offer is not revoked by an informal settlement offer. While that may have been the case under the language of former Rule 37, it is no longer the case under Rule 9-1. A settlement offer, formal or informal, is revoked upon the communication of a new settlement offer, formal or informal. I agree with the following statement of the law by Wilson J. in Sidhu v. Sekhon, [1997] B.C.J. No. 102 (S.C.) at para. 8:
I think interpretation of the rule contemplates the application of principles of contract law. And that those principles must be implemented before resort is had to policy considerations. In my view, those principles establish a number of precepts. First, an offer may be withdrawn before acceptance. It is sufficient for that purpose, if the offeree has actual knowledge that the offeror has done some act inconsistent with the continuance of the offer. Further, the addition of a new term or condition, to an earlier offer, before acceptance, is the withdrawal of the earlier offer, and the submission of a new offer, of which the new condition or term is a part. From the time the new condition is submitted, the earlier offer is withdrawn, and is no longer open to acceptance or rejection, by the party to whom it was presented. Finally, there can be only one offer outstanding at a time. A later offer to the same offeree, on the same subject matter, has the effect of cancelling the prior offer.