Tag: Mr. Justice Skolrood

Facebook "Partying" Quote Impacts Personal Injury Trial

In another example of social media posts being used in personal injury litigation reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, where a Facebook post impacted the trial of the 52 year old plaintiff.
In today’s case (Raikou v. Spencer) the Plaintiff was involved in a 2011 T-bone collision.   The Defendant admitted fault. The Plaintiff suffered various soft tissue injuries and had complaints lingering at the time of trial.  The court found some of these were related to the collision and some of these were due to pre-existing factors.  The Court also noted that the Plaintiff “had a tendency to overstate or exaggerate her condition somewhat“.  This finding was due in part to a Facebook update where the Plaintiff discussed “partying“.  In illustrating the use of this quote Mr. Justice Skolrood provided the following reasons:
3]         Before turning to that issue, I should note that while I found Ms. Raikou generally to be a credible witness, in my view she had a tendency to overstate or exaggerate her condition somewhat. This is particularly so in her description of her pain as being constant and unremitting.
[54]         By way of example, Ms. Raikou travelled to Greece in July and August of 2011. When she returned, she posted the following entry on her Facebook page on August 20, 2011:
From the airport to Eleni’s and Nick’s wedding. Missed the ceremony but made it to the reception. From the airport home to change and off to the reception. Made it through and had an awesome time. 48 hours without sleep, jet lagged and still partying.
[55]         I agree with counsel for Ms. Raikou that caution must be applied when considering the relevance and import of Facebook entries in that they are but a mere “snapshot in time” and do not necessarily shed light on a person’s overall condition or ongoing complaints: see Guthrie v. Narayn, 2012 BCSC 734 at para. 30.
[56]         Nonetheless, this particular snapshot is inconsistent with Ms. Raikou’s testimony that her pain condition is continuous and unrelenting and that it has effectively precluded her from enjoying any of her pre-accident activities.

$30,000 Non-Pecuniary Assessment for Long Lasting Soft Tissue Injury With "Relatively Minimal" Impact

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.   The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back.  Her symptoms carried on to the time of trial and were expected to continue indefinitely.  Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function.  In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
[54]         I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
[55]         I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
[56]         With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
[57]          However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
[58]         It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
[59]         Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
[79]         In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain  four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
[80]         Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.

$35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

Reasons for judgement were released last week by the BC Supreme Court, Smithers Registry, assessing damages for injuries sustained in an assault.
In last week’s case (Abbott v. Glaim) the Plaintiff and Defendant were together at a house party when they became involved in a brief verbal confrontation.  Although the Court was presented with competing versions of what actually transpired the Court ultimately accepted that following the verbal exchange the Defendant “took both hands and pushed (the Plaintiff) backwards off the deck to the concrete pad below”.
The Plaintiff suffered various injuries including a fractured wrist.  In assessing non-pecuniary damages at $35,000 Mr. Justice Skolrood provided the following reasons:
[133]     It will be apparent from the above that I accept Joyce’s evidence that she was pushed down the stairs by Lucy…
[137]     The most significant injury suffered by Joyce was to her left wrist. An initial x-ray of the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius in her left wrist. A cast was applied which she wore until May 19, 2006.
[138]     Joyce underwent physiotherapy treatments for her wrist beginning in early April 2006. She attended 22 physiotherapy sessions over the course of approximately one year. Joyce testified that her wrist continued to cause her pain and discomfort for a considerable period of time, particularly given that her work as a dental hygienist requires her to use both hands and wrists extensively. Joyce described her left hand as the “mirror hand” in that, because she is right handed, the left hand does things like holding the mirror and pulling the patient’s cheek back while the right hand uses the dental instruments.
[139]     As a result of her wrist injury, Joyce was away from work until June 2006. She initially tried to return to work on a full time basis but quickly scaled back from eight to six hours a day because of ongoing difficulties. It was not until August of 2007 that she was able to return to working an eight hour shift.
[140]     In addition to her wrist injury, Joyce testified that she began to experience regular headaches following the incident. Sometime in 2008, she attended a work seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her to consider whether her headaches were the result of a TMJ disorder. She spoke to both her doctor and her dentist about this and she was sent for testing.
[141]     On February 11, 2009, she underwent a CT scan of her head which revealed “focal degenerative activity in the left mandibular condyle.”  The imaging report further notes: “This is an unusual location and raises the possibility that this could be a result of previous trauma.”
[142]     Joyce was examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her symptoms to be consistent with trauma to her TM joints, “particularly an acceleration/deceleration type of an event that would illicit some soft tissue strain on the TMJ supporting structures and lead to a subsequent inflammatory response.”
[143]     However, Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating the incident so he could not conclusively state the cause of Joyce’s symptoms.
[144]     Joyce was prescribed both a night and a day guard to wear in her mouth which are intended to relieve pressure on the TMJ. Joyce testified that she wears the guards and that they have been useful in reducing the frequency of her headaches.
[145]     One other consequence of the incident according to Joyce has been an increased sense of anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant that she continues to take as well as Ativan to deal with the panic attacks. Joyce testified that she no longer takes the Ativan as the frequency of her panic attacks has diminished.
[146]     Joyce testified to the significant emotional upset and embarrassment she experienced as a result of the incident, the effects of which continued to be felt at the time of trial. She said that she strives to be a role model for her 17 year old daughter, and in the community generally, and that it was traumatizing to be involved in an incident of this nature…
[156]     Taking account of all of the evidence and considering the factors articulated by the Court of Appeal in Stapley I award Joyce $35,000 under this head.
 

Bus Driver Liable for Collision After Failing to Stop for Running Passanger


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a bus and a pedestrian attempting to catch it before it departed.
In last week’s case (Heyman v. South Cost British Columbia Transportation Authority) the Plaintiff was attempting to catch a bus which was stopped at a bus stop.   He ran towards it, approaching from its front, waving his hand in the air trying to get the motorists attention.  The bus driver closed the doors and put the vehicle into motion just as the Plaintiff approached colliding with his waving hand.   The impact caused him to spin around and fall to the ground. His ankle was run over by the rear of the bus and he also suffered a broken shoulder.
The bus driver argued there was a strict policy “that if a pedestrian is even one foot away from the bus stop when the doors close, the bus leaves“.  Mr. Justice Skolrood rejected this finding there was no such written policy noting that the written policy stated that “to arrive safely is more important than to arrive on time. The obvious safety of passengers, employees, travelers and pedestrians on the streets and highways must be given precedence over every other consideration.”
Mr. Justice Skolrood went on to note that in any event the bus driver was careless in departing when he did given the proximity of the pedestrian.  In finding both parties negligent in the incident the Court provided the following reasons:
[66]         The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman’s approach.
[67]         In my view, reliance on this alleged policy is no answer to the claim that Mr. Cooper breached the standard of care. I say alleged policy because it is not set out anywhere in writing, notwithstanding that West Vancouver Transit has in place an extensive policy manual setting out detailed operational practices and policies. That said, I have no reason to question Mr. Cooper’s evidence that drivers are instructed to leave once there is no one else waiting at a bus stop.
[68]         However, Mr. Cooper’s conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in Wang, the question is whether there was a real risk of harm that could reasonably be avoided.
[69]         In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver’s attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper’s part. Again, that is particularly so given the manner in which Mr. Heyman was approaching…
[84]         In the circumstances, I find that Mr. Heyman was 60% responsible for the accident and Mr. Cooper 40%.

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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.

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