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Tag: Mr. Justice Milman

Pandemic Did Not “Frustrate” Employment Contract Entitling Employee to Wrongful Dismissal Damages

Written by ERIK MAGRAKEN on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, which could help shed some light on a situation many are facing following this pandemic.  Whether the pandemic amounted to a frustration in a specific employment relationship.

In the recent case (Verigen v. Ensemble Travel Ltd) the Plaintiff worked for the Defendant in a travel industry related job.  When Covid hit the Defendant terminated her position.  They acknowledged they had no cause for doing so but argued the pandemic amounted to a ‘frustration’ of the employment contract.  In disagreeing that the contract was frustrated and finding the Plaintiff was entitled to damages in the amount of five months notice Mr. Justice Milman provided the following reasons:

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PTSD Claim Succeeds For Mistaken Plaintiff Belief That Defendant Killed in Crash

Written by admin on . Posted in ICBC Psychological Injury Cases.

The law in British Columbia has developed to recognize that people witnessing a crash can be compensated in certain circumstances if the event causes psychological injury to them.  While PTSD is a common diagnosis the law developed using the term “nervous shock” and the following principle as been applied in BC
[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, noting ICBC agreed to pay damages to a Plaintiff who developed PTSD after a collision based on the mistaken belief that the Defendant was killed.  It is worth noting that this case involves a Plaintiff and Defendant who were both involved in the crash, as opposed to a bystander, but the circumstances are such that the Plaintiff did not suffer any harm from the forces of the crash themselves or concern for their well being but rather solely based on their concern for the Defendant.
In the recent case (Lutzke v. Beier) the Plaintiff was a conductor operating a train and the Defendant pulled her vehicle into the Plaintiff’s path.  A collision occurred and the Defendant accepted fault .  The Plaintiff “thought for a time that the driver had been killed and that there had been a child in the vehicle who was either killed or seriously injured.  As it turned out, Ms. Beier was not killed and there had been no one else in the vehicle.”.
The plaintiff advanced claims for various heads of damages which were ultimately not successful.  ICBC was persuaded, however, to pay damages for the PTSD the Plaintiff suffered as evidenced by the following passage in Mr. Justice Milman’s reasons for judgement:

[2]            Liability for the accident has been admitted.  It is common ground that Mr. Lutzke developed post-traumatic stress disorder (“PTSD”) as a result of the accident and that he has since recovered sufficiently to return to work full time.  Despite his return to work, however, Mr. Lutzke says that he continues to suffer from increased anxiety and remains vulnerable to a relapse of PTSD, particularly if he experiences another traumatic event.

[3]            The parties have agreed on the quantum of all but two of the heads of damages claimed.  What remains in issue is Mr. Lutzke’s entitlement to damages for: (a) future loss of income earning capacity, including future pension benefits; and (b) the cost of future care.

 

$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

Written by admin on . Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.
In today’s case (Gauthier v. Dubois) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a variety of injuries many of which enjoyed good recovery.  Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128]     Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129]     Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130]     I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131]     Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132]     Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133]     The plaintiff advances no argument in this regard.

[134]     Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135]     Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136]     Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137]     I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138]     It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139]     Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.