Tag: Mr. Justice Melnick

A Draw is a Loss in the World of Tort Litigation

When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place.  In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.
In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant.  The Defendant denied the allegations in their entirety.  Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed.  In dismissing the claim Mr. Justice Melnick provided the following reasons:
[50]         In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.

Driver Faultless For Loss of Control Caused by "Agony of Collision"

(Update May 30, 2012The Plaintiff’s appeal from the below decision was dismissed by the BC Court of Appeal in reasons for judgement released today)
As previously discussed, the principle of “agony of collision” can excuse a driver who loses control of their vehicle if the loss of control is preceded by an unexpected imminent danger not caused by them.  Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, demonstrating this.
In this week’s case (Robbins v. Webb) the Defendant was driving a pick-up truck in a southbound direction.  The roads were ‘very slippery‘ due to winter driving conditions.  The Plaintiff was approaching in the on-coming direction and began to fishtail.  The Defendant responded by hitting his brakes.  This caused the Defendant’s vehicle to lock up and proceed into the oncoming lane of travel.  The vehicles collided.
The Plaintiff sued the Defendant for the injuries he sustained in this crash.  The case was dismissed with the Court finding that the Plaintiff was careless in initially losing control and this resulted in the Defendants reasonable reaction.  In dismissing the lawsuit Mr. Justice Melnick provided the following reasons:








[13] Thus, I accept that Mr. Webb was fully in his own southbound lane when he first commenced braking. I also find that the reason Mr. Webb applied his brakes hard, locking them and causing his vehicle to slide into the northbound lane, was because Mr. Robbins had temporarily lost control of his vehicle due to the poor tread on the Cobalt’s tires coupled with his driving too fast for the icy road conditions, which caused the left rear of the Cobalt to skid sideways in a clockwise direction, crossing partially into the southbound lane. Mr. Webb reacted to a situation precipitated by Mr. Robbins, not the other way around.

[14] It may well be that if Mr. Webb had not braked, his vehicle would not have skidded into the oncoming lane. Mr. Robbins was probably in the process of regaining control of the Cobalt when he was struck. But, in the heat of the moment, one cannot say that Mr. Webb’s reaction was inappropriate. To his right was a steep uphill bank, so his options were very limited. He reacted to the position he found himself in as a result of the negligence of Mr. Robbins.









$85,000 Non-Pecuniary Damages Assessment for Chronic Pain Syndrome

Adding to this site’s archives of chronic pain cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain syndrome.
In last week’s case (Perry v. Perry) the Plaintiff was involved in two motor vehicle collisions.  She suffered from pre-existing health problems including PTSD and chronic pain.  She was injured in both collisions and this aggravated her pre-existing difficulties and caused new ones.  Ultimately she was diagnosed with a Chronic Pain Syndrome with a poor prognosis.  In assessing her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Melnick made the following findings:

41] Ms. Perry is a person who had had a number of challenging health issues prior to the first accident. Those issues included PTSD, which related to her childhood abuse, and problems with her feet and legs. She sometimes suffered from depressive episodes and had a history of alcohol and heroin abuse. She had multiple areas of pain that she experienced at least as far back as 2003. I conclude that, prior to the first accident, she was a person of some fragility with respect to both her physical and emotional health, likely the seeds of which were sown by her tragic childhood and exacerbated by her alcohol and drug use.

[42] That said, Ms. Perry, in the few years prior to the accident, had made real progress by putting her addictions behind her and, to a certain extent at least, engaging in life through education, volunteer work and a small amount of employment. She was, however, what I would describe as a “thin-skull” case: more at risk for emotional and psychological trauma than a normal person without Ms. Perry’s medical history would be: Athey v. Leonati, [1996] 3 S.C.R. 458. See also: Hussack v. School District No. 33 (Chilliwack), 2009 BCSC 852 at para. 143; . Thus, while the average otherwise healthy individual involved in the same type of accidents that Ms. Perry experienced may have suffered similar physical injury, that person would not be at the same risk of suffering the same psychological damage as Ms. Perry.

[43] I am satisfied that Ms. Perry suffers from chronic pain, which is largely attributed to the first accident, and to a minor extent to the second accident. She was not without pain and physical problems before these accidents and the defendants are not responsible for the extent to which those symptoms were already symptomatic: Athey at para. 35…

[51] Ms. Perry has several health issues, a large portion of which are attributable to these two accidents. Taking into account, as I have, that some of her current health situation is attributable to her past medical problems, I asses her overall non-pecuniary damages at $85,000. The seriousness of Ms. Perry’s injuries and her guarded prognosis are more in line with the authorities suggested by counsel for Ms. Perry.

Proving Your BC Injury Claim: A "Balance of Probabilities"


When you sue someone in British Columbia for causing injuries (either negligently or intentionally) you need to prove your case.  If you fail to do so your case can be dismissed and you may end up paying the other party’s Court costs.
What is the test that needs to be met when proving your injuries?  Unlike criminal trials which require proof of a crime ‘beyond a reasonable doubt‘, civil lawsuits have a much lower burden of proof.  A Plaintiff in an injury lawsuit need only prove their claim on a ‘balance of probabilities‘ which means more likely than not.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the civil burden of proof in an ICBC claim.
In today’s case (Costello v. Rafique) the Plaintiff was involved in a ‘relatively minor rear-end collision‘ in 2006.  He sued for damages.  The Plaintiff claimed the accident caused a back injury which continued to cause problems up until the time of trial.  The Defendant disagreed arguing the car crash was not the cause of the Plaintiff’s ongoing pain problems rather these were attributable to a previous back condition (the Plaintiff in fact underwent a decompressive laminectomy shortly before the collision).
Mr. Justice Melnick found that while the Plaintiff did indeed continue to suffer from back pain, and that the ongoing symptoms “may well be…the result of soft tissue injuries resulting from the accident” possibility is not enough to prove a case on the civil standard.  In dismissing the Plaintiff’s allegation of causation of ongoing injuries due to the collision the Court stated as follows with respect to the Civil Burden of Proof:

[16] It may well be that Mr. Costello’s continuing back pain is the result of soft tissue injuries resulting from the accident. However, on the balance of probabilities, Mr. Costello has failed to persuade me that this is the case…

[17] Dr. Reebye’s carefully worded report really says it all:  “[t]he soft tissue injuries were responsible for his symptoms and limitation soon after the accident” [emphasis added] and, “[t]he injuries sustained were not severe enough to aggravate his pre-existing conditions.” I note that it is possible that Dr. Reebye is wrong. It could be that the whiplash from the accident did affect Mr. Costello’s spine in a way that affected the area of the surgery. But without a full and proper medical investigation with the aid of diagnostic imaging, I have no way of knowing that. The body of evidence that has been put before me on behalf of Mr. Costello, who bears the burden of proving his case on the balance of probabilities, just does not do that. The evidence neither convinces me that the soft tissue injuries from this minor rear-end collision have independently resulted in the debilitating pain and discomfort I have no doubt he now suffers, or that those injuries in some way affected the area of his spine which was the subject of the 2006 surgery or in some way caused his pre-existing condition to re-assert itself.

[18] I am convinced on a balance of probabilities that Mr. Costello did, indeed, suffer soft tissue injuries in the motor vehicle accident which caused him pain and discomfort for a period of time that cannot be quantified precisely but, before the time of trial, would have been resolved. Dr. Reebye’s suggestion in cross-examination that Mr. Costello could experience effects of the accident for five to ten years is implausible and at odds with his report. As noted above, I have no doubt that Mr. Costello is suffering back pain but I am not satisfied, to the standard required on a civil trial, that his current problems result from the injuries sustained in the motor vehicle accident. ..

$35,000 Non-Pecuniary Damages for STI's of Over 10 Years Duration

Reasons for judgment were released today by the BC Supreme Court, Cranbrook Registry demonstrating that a lengthy duration of injury does not always merit a significant award of non-pecuniary damages.
In today’s case (Salzmann v. Bohmer) the Plaintiff was injured in a BC Car Crash.  The collision took place over 10 years before trial.  While the time-frame from the accident to trial was unusually long, such delays are not unheard of when Infant Plaintiffs are involved in motor vehicle collisions.  One reason for this is that in British Columbia  limitation periods typically do not start running for infants in tort claims until their 19th birthday.  Another reason is that doctors are more reluctant to give a prognosis with respect to injuries suffered in infants as opposed to adults.  In any event, this case involved injuries of over 10 years duration by the time of trial.
Despite the duration of the Plaintiff’s Injuries, Mr. Justice Melnick found that they were not particularly severe or debilitating. He also found that she failed to take reasonable steps to reduce her symptoms and that with appropriate exercises there was room for considerable improvement.  In assessing the Plaintiff’s non pecuniary damages at $35,000 Mr. Justice Melnick held as follows:

[18] Medical reports are often as interesting for how they are worded as for what opinions they express. In the case of the report of Dr. Apel, she indicated that she has examined Ms. Salzmann at the request of Ms. Salzmann’s counsel. Then, while responding to a specific question put to her by that same counsel (whether Ms. Salzmann’s symptoms will abate eventually) she carefully replied that “…it is unlikely those symptoms spontaneously will abate eventually” (emphasis added).

[19] The use of the word “spontaneously” coupled with her pointed remarks that Ms. Salzmann’s lack of conditioning and need for an exercise therapist or kinesiologist suggests to me that Ms. Salzmann’s symptoms likely will abate provided she becomes committed to an appropriate program of exercise (as opposed to passive treatments such as massage). Ms. Salzmann must take a significant role in her own recovery, something she has not done in the past (perhaps due to her being so young, perhaps due to not having been given adequate instruction or having been provided with the required sense of self-discipline). For this reason she bears some, but far from all, of the responsibility for her continued pain given that she was injured when only ten years of age.

[20] I have no doubt that Ms. Salzmann suffered musculoligamentous strain to her cervical spine as a result of the accident and that, in 2003, she still experienced residual tightness in her trapezius and pectoral muscles. I also accept that in 2008 she demonstrated a chronic regional myofascial pain syndrome as described by Dr. Apel. Whether, by that time, she could have avoided such a sequela to the injury she incurred in the accident is a good question.  Things may have been different if she had followed an appropriate and properly directed regime of exercise after the accident. The reality is that she did not, and the symptoms she displayed apparently were not sufficiently alarming to anyone to insist that she do so, and she was not a complainer. With a few exceptions, Ms. Salzmann’s life carried on much as normal, as best as could be observed in a child who was in the process of development, growing and maturing.

[21] Today, she still suffers from the injury she received in the accident. But the message from her own doctor is loud and clear: she can do something about it.

[22] I have no evidence upon which I can estimate the cost of an exercise therapist or kinesiologist. Dr. Apel gave no indication of the length of time Ms. Salzmann should be supervised. However, the non-pecuniary damages I will award her will recognize that her road to the eventual abatement of her symptoms will probably require her to not just be self-motivated, but have the assistance of a professional for advice for a period of time to set her on the right track. That said, I note that no defendant should be required to pay for anyone’s lack of interest in pursuing his or her own recovery. Ultimately we all bear a responsibility to do what we can to attain and maintain good health. In the legal realm, this constitutes mitigation, and a plaintiff bears a legal duty to mitigate.

[23] With all of the above in mind, I assess Ms. Salzmann’s non-pecuniary damages at $35,000. I agree with Ms. Salzmann’s counsel that the decision of Madam Justice Humphreys in Sinnott v. Boggs, 2006 BCSC 768, is the most relevant authority provided to me with respect to non-pecuniary damages. Those provided by counsel for the defendant deal largely with milder forms of injury with less chronic consequences.

[24] From the amount of $35,000 I deduct 20% for Ms. Salzmann’s failure to mitigate by not pursuing the appropriate conditioning and exercise programs despite the fact that they were laid out for her as early as 2000. Thus, the net award of non-pecuniary damages is $28,000.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer