Tag: seatbelts and icbc claims

Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.
In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision.  The matter proceeded to trial first on the issue of fault.  Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“.  ICBC did not lead this evidence at trial.  Ultimately fault for the crash was split between the motorists involved on a 90/10 basis.   Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue.  Madam Justice Smith refused to do so providing the following reasons:
[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.
[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.
[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…
[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.

$120,000 in Damages for “Gifted Athlete” Injured in BC Car Crash

Reasons for judgment were released last week (Atkison v. Niles) by the BC Supreme Court awarding just over $120,000 to a ‘gifted athlete’ who was injured in a 2003 BC motor vehicle collision.

The Plaintiff was 16 at the time of the collision. He was a passenger in a vehicle involved in an intersection crash. As a result he suffered a knee injury which was expected to have some permanent consequences. The injury was diagnosed as either a posterior cruciate ligament tear or damage to the trochlea groove of the femur. As a result of this knee injury it was agreed that the Plaintiff had an increased risk of developing progressive osteoarthritis eventually requiring knee replacement surgery.

The Plaintiff played as catcher for an ‘elite’ league in White Rock at the time of the crash. By the time of trial in 2009 the Plaintiff was playing at the University of New Mexico as a first baseman and had aspirations of going pro after graduating.

In quantifying the Plaintiff’s pain and suffering (non-pecuniary damages) at $55,000 the Court noted the following facts:

[15] More significantly, he suffered a permanent injury to his left knee that has caused and will continue to cause intermittent pain, particularly with certain body positions. He will suffer the early onset of osteo-arthritis and require knee replacement surgery, likely in his 40’s. If he lived a sedentary life, as Dr. Hill recommends, the time for that surgery could be extended to the 60’s. However, the plaintiff is a gifted and active athlete. Extending the time for surgery by remaining inactive would constitute a drastic negative impact on his lifestyle. There is evidence that, because of the limited life span of a knee replacement, other surgeries may be required. While the defendant points to ongoing medical research which may provide other alternatives in future, that remains speculative at present.

[16] A significant impact for this plaintiff has been the impact on his baseball career. The evidence is that he was particularly suited to playing the position of catcher, a position he has not been able to occupy since the accident, nor will he ever. There is evidence, which I accept, is that he would have been most attractive to professional baseball had he been able to play that position. There is also evidence that, playing at first base, he does not have the size that professional baseball seeks for that position. There is also evidence that the knee injury had some impact on his foot speed, which would also diminish his chances of playing professionally.

In assessing the Plaintiff’s loss of earning capacity (future wage loss) at $100,000 the Court noted the following:

[20] The plaintiff will be graduating from university with a general degree. Thus he has no earnings history. As earlier stated, his goal has long been to play professional baseball. That has not been a unrealistic goal given his exceptional talent.

[21] However, he is less attractive to professional baseball because of the knee injury, both because of that fact and the fact that the injury required him to move permanently to a position where he is less valuable. The evidence of professional baseball scout Mr. Archer in that regard is consistent with common sense. Measuring that lessened opportunity is a particularly difficult exercise at his youthful age, except to say that it is real and not insignificant.

[22] If that dream is not realized, the plaintiff intends to seek a career as a firefighter or in a trade, as his brother and father have done. While there is no expert evidence on the issue, It is plain and obvious that the plaintiff, with his permanent knee injury, will be less attractive to future employers, particular those occupations requiring physical exertion.

[23] Finally, I must consider the very real possibility that the plaintiff will be forced to undergo at least one major knee surgery and the effect this will have on his employability and ability to earn income in the physically demanding careers most likely open to him.

The Plaintiff’s total damages were then reduced by 22.5% because he was not wearing his seatbelt at the time of the collision and this contributed to the severity/cause of his injuries.

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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.

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