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Tag: Mr. Justice Macintosh

$90,000 Non Pecuniary Assessment for Chronic, Partly Limiting Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a vehicle collision.

In today’s case (Lewis v. Wang) the Plaintiff was involved in an intersection collision in 2014.  The Defendant denied fault until shortly before trial .

The Court accepted the collision caused chronic soft tissue injuries which were expected to continue into the future and were partly limiting.  The Defendant called medical evidence minimizing the collison’s connections to the injuries but this was rejected.  In assessing non-pecuniary damages at $90,000 Mr. Justice Macintosh provided the following reasons:

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Court Dismisses "Low Velocity Impact" Collision Claims in Part Based on Forseeability

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissed claims for injuries from 5 separate collisions.
In today’s case (Greenway-Brown v. Kyung) the Plaintiff was involved in 5 separate collisions and alleged injury.  The Court dismissed two of the claims based on liability.  Of the remaining 3 the Court found that the Plaintiff did not meet her burden in proving injury.  Interestingly, the Court then went even further and noted that as a matter of law it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot.  This seems to contradict the reasoning from the BC Court of Appeal and numerous other so-called low velocity impact prosecutions.  In any event, Mr. Justice Macintosh provided the following reasons extending the Mustapha reasonsing to low velocity collisions:

[51]        Ms. Brown has not established the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude.  While the Court in Mustapha recognizes that a defendant must take a plaintiff as it finds him, or her, for purposes of damages, focusing on a person of ordinary fortitude, for the purposes of determining foreseeability, will not be confused with the “eggshell skull” situation, where, as a result of a breach of duty, the damage inflicted proves to be more serious than expected.

[52]        Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well.  Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis.  Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude.  In the three accidents, 2, 3, and 5, all of the available objective evidence, including the photographic evidence of the Jeep after several of the accidents, makes it wholly improbable that the Plaintiff suffered damages, or could suffer damages, from the three parking lot episodes.

[53]        The Plaintiff’s mental and physical conditions, of which she complains, pre-existed the second accident upon which she sues, and were exacerbated by her obesity and other physical conditions unrelated to the three accidents.  A defendant need not put a plaintiff in a position better than his or her position but for the defendant’s conduct.  See, Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34–36.  For Ms. Brown to receive damages from accidents 2, 3, and 5 would be to offend the principle expressed in Athey.

Complex Wage Loss Claim Fuels Successful Jury Strike Application

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.
In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages.  The trial was scheduled for 18 days before a jury at the Defendants election.  The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex.  In granting the application Mr. Justice Macintosh provided the following reasons:
[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.
[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011.  That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff.  The methods for determining income loss and lost-earning capacity are complicated within each of his two careers.  In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.
[8]             Before the accident, the Plaintiff practised law for 20 years.  For the last 17 of those years, he was a partner in a Victoria law firm.  During at least part of that time, he practised law through the business model of a personal law corporation.  Money he received from the firm went into his law corporation.  He did not take all that money out, at least not regularly.  Also, he split income with his wife in reliance on the applicable tax laws.  Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings.  They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.
[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.
[10]         The Plaintiff has maintained, at different times, at least three personal companies:  through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law.  That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.
[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.
[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice.  Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.
[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.
[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts.  When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.
[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury.  That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.
[16]         Liability is in issue.  All the elements of the damages claimed are also in issue.  The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity.  It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.
[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports.  I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.
[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application:  see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.).  In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.
[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer.  (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)
[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5.  As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.

$6 Million Damage Assessment After Teen Injured By Corroded Lamppost

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for profound injuries after a plaintiff fell two stories after falling while swinging from a corroded lamp-post.
In this week’s case (Mackey v. British Columbia) the Court summarized the facts as follows
On March 31, 2007, when David Mackey was 17, he climbed onto a concrete baluster.  The baluster formed part of a railing along the perimeter of a pedestrian plaza at 812 Wharf Street, overlooking the waterfront, in Victoria.  On the baluster stood a lamp post.  It was about 6 feet tall.  David Mackey swung around the lamp post.  It was corroded to the core.  When David Mackey swung around it, the lamp post came loose.  It tottered, and he fell two storeys onto the concrete walkway below.  He suffered severe traumatic brain injury.
The Court found the injury caused profound disability and awarded damages assessing a lifetime of earnings and care totaling nearly $6 million.
The court reduced this amount by 65% to account for the Plaintiff’s contributory negligence.  In finding the Province 35% and the Plaintiff 65% for the incident Mr. Justice MacIntosh reasoned as follows:

[39]         From the evidence above, I reach the following conclusions.

[40]         The lamp post was severely corroded when David Mackey fell.  The lamp post had never been inspected or maintained to see that it was intact.  The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it.  Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.

[41]         But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened.  What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way.  Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below.  I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements, [2012] 2 S.C.R. 181:

[9]        The “but for” causation test must be applied in a robust common sense fashion.  There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  [Citations omitted.]

[10]      A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.  Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]

[42]         Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened…

[60]         When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall andPaquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident.  David Mackey was nearly 18.  He mounted a safe railing where there was a dangerous drop below.  He had probably also heard Ms. Arner’s warning to Ryan Ramsay.  On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job.  The lamp post, on top of the railing, was its own accident waiting to happen.  As noted earlier, it could have been pushed over by a force of only 12.5 pounds.

"Candid" Expert Witness Impresses BC Supreme Court

I have spent much time on this blog highlighting expert witnesses who have been criticized by trial judges.  On this note it is refreshing to see when an expert witness is complimented by the Court for being candid in their role.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, doing this.
In today’s case (Gill v. Bhuller) the Plaintiff was involved in a 2010 collision caused by the Defendant.  She was ok at the scene and did not experience any symptoms until the following day.  She ultimately developed chronic soft tissue injuries.  The Court assessed non-pecuniary damages at $75000.
In the course of the litigation the Defendant had the Plaintiff examined by a physician that agreed she had ongoing symptoms from the collision which were expected to be chronic.  In complimenting the physician’s candid testimony Mr. Justice Macintosh provided the following reasons:
[25]         I was impressed by the testimony of Dr. Calvert called by the defence, because he was notably candid in his assessment of Ms. Gill, in keeping with the ethical responsibilities of an expert witness.  He accepted that she suffers ongoing pain.  He formed no impression that she malingers and he believed that she is genuine in searching for the cause of her problems.  He accepts that it is unlikely Ms. Gill’s symptoms will go away, and he can only speculate that she may see improvement.

Motorist "Darting Out Into Traffic" Fully At Fault for Subsequent Collision

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing the liability of a motorist who darts into traffic causing a cyclist to lose control.
In this week’s case (Graham v. Carson) the Defendant motorist was stopped at a commercial loading zone and the “darted out into traffic too quickly” when it was unsafe to do so.   The Plaintiff, who was travelling in the same direction, lost control trying to avoid a collision with the Defendant and subsequently drove his bicycle into a parked car causing injury to himself.  The Defendant argued the Plaintiff was the author of his own misfortune.  Mr. Justice Macintosh rejected this argument finding the Plaintiff acted reasonably in the agony of collision and that the Defendant was fully to blame.  In reaching this conclusion the Court provided the following reasons:
[8]             Having found as I have regarding the turn signal, I add that the failure to signal is not the central concern in this case.  If Ms. Carson had signalled at about the same moment she pulled out and drove into the traffic, the signal would have been of little or no assistance to anyone.  The main problem was that Ms. Carson’s car darted out into traffic too quickly.  The traffic was proceeding south on Blanshard immediately behind or beside her car when her car had been stopped in the commercial zone moments before that.  She should have waited for a safe opening in the traffic, which might have entailed waiting where she was until the light changed so as to stop the southerly flow on Blanshard before cars started south onto Blanshard from Fort Street…
[11]         Proceeding through the green light southward on Blanshard were, first, the SUV, second, the plaintiff on his bicycle, and third, Mr. Enns in his car.  The SUV, the plaintiff’s bicycle and the Enns car were thrown into disarray by the defendant driver pulling out too suddenly, immediately in front of the SUV.
[12]         I noted above that the SUV stopped before hitting the defendant’s car, but avoiding that collision was a near thing.  The SUV had to stop very quickly.  Mr. Enns veered his car toward the left; that is, toward the centremost of the southbound lanes on Blanshard, in order to avoid a collision.  Meanwhile, the plaintiff on his bike had a matter of seconds to decide what to do.  He was conscious from past experience that he risked being rear‑ended by the Enns vehicle if he stayed his course and simply braked, hoping to stop in time to avoid hitting the SUV.  Instead, he steered his bike, to the right, into what appeared as a metre‑wide opening between the stopped SUV and a car parked on Blanshard, just south of the commercial zone.
[13]         As I noted above, Mr. Graham is an experienced cyclist, and hoping to avoid injury by driving into the space between the SUV and the parked car was not unreasonable in that dire circumstance, when there was no time and little opportunity to do anything else.
[14]         Unfortunately, that escape route did not save the plaintiff.  His elbow hit the mirror of the parked car, breaking off the mirror.  That impact drove him from his bike and injured him, thus giving rise to this claim…
[16]         My view of the evidence and my resulting findings of fact lead to my conclusion that the defendant driver is fully liable for the plaintiff’s injuries.  The plaintiff was not contributorily negligent.  He acted promptly and not unreasonably in a desperate situation, which was brought about entirely by Ms. Carson’s re‑entering traffic when her car should have stayed where it was until there was a safe opportunity to proceed.