Tag: Mr. Justice Weatherill

Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

Written by admin on March 5, 2013. Posted in ICBC Liability (fault) Cases, Uncategorized. 104 Comments on Motorist Fully At Fault For Collision Following U-Turn Behind Reversing Vehicle

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing fault for a collision involving a Defendant who u-turned into a parking spot behind a backing up vehicle.
In this week’s case (Ferguson v. Yang) the Plaintiff stopped along the curb of 8th Street in New Westminster to drop his daughter off for school. There was a gap behind him with a white van parked behind him. The Defendant, who was approaching from the opposite direction made a u-turn and pulled into the gap. At the same time the Plaintiff was backing up and a collision occurred.

Although there was a dispute as to how the collision occurred the Court found the above scenario the likely one as the Defendant’s evidence was “fraught with inconsistencies and obvious exaggerations“. In finding the Plaintiff faultless for the collision Mr. Justice Weatherill provided the following reasons:
41]         In my view, the u-turn performed by the defendant in an attempt to secure a parking spot across the street in a school zone where parents were busy dropping their children off for school was a maneuver fraught with danger. Moreover, I am satisfied that the plaintiff’s backup lights were illuminated, that the defendant ought to have seen them and that he ought to have anticipated the plaintiff’s vehicle was in the process of reversing into the space the defendant was attempting to move into. Captain MacPherson saw these backup lights. Had the defendant been keeping a proper look out, he would have seen them as well.
[42]         The defendant has failed to satisfy me that the plaintiff was contributory negligent in any way.
[43]         The law does not require perfection on the part of the plaintiff to guard himself against every conceivable eventuality. He must only guard himself against those eventualities that a reasonable person ought to have foreseen, within the ordinary range of human experience. The plaintiff was entitled to proceed on the assumption that all other vehicles would do what is there duty, namely observing the rules of traffic: Pacheco (Guardian ad Litem of) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.) at para. 11; Dechev v. Judas, 2004 BCSC 1564 at para. 22.
[44]         The plaintiff checked the area around his vehicle by looking in his side and rear view mirrors and by looking over his right shoulder. He did all that he ought to have done. A reasonably prudent driver should not be expected to anticipate that while in the course of backing up, another vehicle will perform an aggressive and illegal u-turn from the other side of the street in an attempt to occupy the space behind him.
[45]         The plaintiff had no warning of the impending collision. I do not believe the defendant’s evidence that he was stopped and that he honked his horn prior to the collision.
[46]         In Carson v. Henyecz, 2012 BCSC 314, Madam Justice Hyslop stated at para. 99
            The duty imposed on a reversing driver is not just when the driver starts to reverse, but throughout the entire reversing procedure and to its completion. The object is to be aware as reasonably possible to what is behind the driver and in the driver’s path while in reverse.
I agree with those comments. I find that, in the circumstances here, the plaintiff conducted himself appropriately and was as aware as reasonably possible to what a reasonable driver should have anticipated would be in his path while reversing his vehicle. He could not have reasonably anticipated that the defendant would do what he did.

Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

Written by admin on February 22, 2013. Posted in ICBC Wage Loss. 1 Comment on Yes, Reimbursement of Sick Leave Benefits is a Recognized Damage in BC Injury Litigation

The law in BC has long recognized that a Plaintiff can seek damages to reimburse banked sick leave benefits which are depleted due to an injury caused throught the negligence of others. Despite this litigants occasionally still argue that the law does not allow such recovery as it amounts to ‘double recovery’. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of this defence argument.
In this week’s case (Chingcuangco v. Herback) the Plaintiff was injured in a 2008 collison. She missed time from work and used up over $7,000 of banked sick time. In confirming that the Plaintiff can recover this loss Mr. Justice Weatherill provided the following reasons:
[209]     During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits. She seeks damages to reflect the depletion of those benefits.
[210]     The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09.
[211]     The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time.
[212]     This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48. In that case, Madam Justice Ballance provided a thorough and helpful analysis:…
[213]     I agree with that analysis and I adopt it in its entirety. Here, the plaintiff exhausted her accumulated sick leave. She also used up several of her vacation days. She has had illnesses unrelated to the accident that have resulted in her being unable to work. She is likely to have them in the future. Her plan is to stay and make a career at CRA.
[214]     I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09. There will be no deduction for income tax.
I have canvassed this topic before and you can click here to access my archived posts addressing the law of recovery of sick time benefits.

Low Velocity Impact Defence – Not Based on Science, Not Even "Common Sense"

Written by admin on February 4, 2013. Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived posts addressing Low Velocity Impacts, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, rejecting this defence.
In last week’s case (Christoffersen v. Howarth) the Plaintiff was involved in a 2010 rear end collision. Fault was admitted by the Defendant. The Plaintiff suffered a soft tissue injury which was still symptomatic at the time of trial but there was an “excellent prognosis” for full recovery. The Court assessed non-pecuniary damages at $35,000 but prior to doing so Mr. Justice Weatherill provided the following comments criticizing the LVI Defence:
[54]         The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision. Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury…
[58]         In order to accept the defendant’s argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision. I am not prepared to do so. I found each to be credible, honest and forthright. Their evidence was uncontroverted by the defendant. At most, the plaintiff’s evidence was shown on cross examination to have been exaggerated in a few minor respects.
[59]         The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan. No evidence was led by the defendant regarding the amount of force that the plaintiff’s body was subjected to during the collision or how the shock absorbers built into the vehicles’ bumpers affected the damage that otherwise would have been sustained. In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.
[60]         I accept that the collision was relatively minor. However, even a low impact collision can cause injury: Lubick v. Mei, 2008 BCSC 555 at paras. 5-6. Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff’s vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal.
[61]         Causation has been established by the plaintiff.

Lawyer Ordered to Pay Costs Personally for "Shoddy Piece of Counsel Work"

Written by admin on January 16, 2013. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 3.

In an illustration of a seldom used power, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, ordering a Plaintiff’s lawyer to pay costs to Defendants personally pursuant to Rule 14-1(33) after bringing an unsuccessful application to renew a lawsuit.
In this week’s case (Drover v. BCE Inc.,) the Plaintiff sued various Defendants challenging system access fees collected by cellular companies. It was a proposed class action. The lawsuit was filed in 2004 and various Defendants were served the lawsuit via fax. Some Defendants questioned the propriety of fax service to which the Plaintiff’s lawyer responded “we believe the Court will accept service by Facsimile“.
No steps were taken to perfect service until 2012 when the matter was brought before the Court with the Plaintiff asking the Court to permit “the plaintiffs to serve the statement of claim”. The Court refused noting that the Plaintiff’s lawyer “did not bother to consider the relief that might be available under the Rules. Instead, he seemed to be content with putting a general concept in his application in the hope of attracting the court’s sympathy.” The Court found this was “unacceptable” and dismissed the application after canvassing the factors under Rule 3-2(1).
Mr. Justice Weatherill awarded multiple Defendants costs and further ordered that the Plaintiff’s lawyer personally pay these. In doing so the Court provided the following reasons:
[62] In my view, this is an exceptional case. The conduct of counsel for the plaintiffs has caused costs to be wasted through delay and neglect. Plaintiffs’ counsel neglected this action for over 8 years. When he got around to dealing with it by bringing this application, he failed to set out the proper relief. Furthermore, the application was not supported by any evidence explaining either the delay or the failure to comply with the Rules regarding the need for an endorsement and proper service. Moreover, the application was brought against defendants against whom there was no basis for the order(s) sought. To say that this was and has from the outset been a shoddy piece of counsel work would be an understatement.
[63] I am ordering that E.F. Anthony Merchant, Q.C. be personally liable for the foregoing awards of costs, payable forthwith.

$40,000 Non-Pecuniary Assessment for Patellofemoral Knee Pain

Written by admin on August 24, 2012. Posted in ICBC Knee Injury Cases, ICBC Liability (fault) Cases, Uncategorized.

Adding to this site’s archived posts addressing damages for knee injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for Patellofemoral pain.
In the recent case (Peragine v. Serena) the plaintiff was involved in a 2009 intersection collision. The Defendant left a stop sign and proceeded into the Plaintiff’s lane of travel resulting in the collision. Although the Defendant disputed fault she was found fully liable for the crash.
The plaintiff suffered a knee injury which required surgery. She remained symptomatic at the time of trial and was expected to have symptoms for some time into the future. In assessing non-pecuniary damages at $40,000 Mr. Justice Weatherill provided the following reasons:

[70] Dr. Kokan concluded that Michelle’s pain in her left knee was and is caused by the medial synovial plica (which was removed during the surgery), patellofemoral pain syndrome and pes anserinus bursitis. It is his opinion that the motor vehicle collision on March 13, 2009 caused the onset of her left knee pain, which irritated the medial synovial plica. He acknowledges that there is controversy in the literature and within his profession regarding the function of the synovial plica and its contribution to symptoms. Some orthopedic surgeons, including Dr. Kokan, are of the view that it can make one susceptible to pain. Others are of the opinion that the plica has minimal, if any, impact on pain. Dr. Kokan concluded that Michelle’s plica, which was in a vulnerable position, being suddenly impacted caused direct trauma and caused her to experience the pain she had reported. Moreover, the blunt impact of the accident also transmitted forces to other structures within her knee, including the patellofemoral joint.

[71] Dr. Kokan also acknowledged that patellofemoral pain syndrome could be caused by a person being inactive and then suddenly becoming active.

[72] In Dr. Kokan’s opinion, it is likely that Michelle could continue to experience her pain symptoms for between two to three years. He expects that she will continue to experience difficulties with kneeling, walking, standing and negotiating stairs. He recommends that Michelle limit her sports to non-impact activities such as swimming or cycling…

[75] I accept Dr. Kokan’s description of Michelle’s symptoms as described in his report. I also accept his opinion that the pain in her left knee was caused by a blunt impact during the March 13, 2009 collision and that it is possible for the injury to the knee to have occurred during the accident but the pain associated with that injury not to have manifested itself for three weeks to a month…

[118] All of the injuries Michelle suffered to her forehead, shoulder, neck and back were minor and completely resolved within a few weeks. None have reoccurred, although she does have a small, residual but indiscreet scar on her forehead.

[119] However there is no question that, since the collision, Michelle has experienced and is continuing to experience intense and ongoing pain in her left knee. She is unable to climb or descend stairs or even walk or stand for prolonged periods of time without significant pain and having to sit and rest her knee. She is unable to participate in sporting activities which she has grown up doing and which are her passion…

[130] The plaintiff is 21 years of age. She continues to have trouble walking and standing without pain. She is in pain every day. Despite the pain, she is living a normal and enjoyable life. The prognosis for a full recovery is good.

[131] After reviewing the foregoing cases and taking my findings of fact in this case into account, I find that that an award of $40,000 for non-pecuniary damages is appropriate.