Tag: Singh v. Clay

ICBC Hit and Run Claim Succeeds With The "Expectation The Other Driver Would Comply With the Law"


Useful reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, which I summarize in my continued efforts to highlight the ‘reasonable efforts’ requirement for hit and run accident victims.
In last week’s case (Singh v. Clay) the Plaintiff was injured in a handful of collisions.  In one of the incidents the Plaintiff’s vehicle was rear-ended.  Following impact the offending motorist “drove away without stopping, as the Plaintiff exited his vehicle“.  As a result the Plaintiff was unable to take down the offending vehicles licence plate number.
ICBC argued that the Plaintiff did not take reasonable efforts at the scene to identify the driver.  The Plaintiff conceded that he “could have done so but he did not look at the licence plate as he did not expect the driver to drive off as she did“.  Mr. Justice Greyell found this was a reasonable explanation and concluded the Plaintiff complied with his obligations under section 24 of the Insurance (Vehicle) Act.  The Court provided the following useful comments:

[78] In the present case, Mr. Singh might have been able to take down the licence plate number of the offending vehicle if he had done so immediately.  However, he did not expect the vehicle to leave the scene of the accident.  Once it became clear that the vehicle was not going to stop, his wife made an effort to write the number down, but only got two of the letters.  Following the accident Mr. Singh took all reasonable steps to ascertain the identity of the driver.  He spoke to two witnesses, he telephoned ICBC, attended the police, phoned his lawyer to obtain advice as to how to proceed, and, as a result, put up flyers seeking witnesses.

[79] In Leggett the plaintiff’s case was dismissed because the Court found he had made a decision not to pursue his rights at the time of the accident.  In Smoluk the Court distinguishedLeggett stating, at para. 9:

[9]        In my view, the Leggett case is clearly distinguishable from this case because the plaintiff in this action made no decision not to pursue her rights. She was prevented from obtaining more information because of the precipitate departure of the wrongdoer, and in my view the plaintiff acted reasonably in taking down the license plate number which would lead any reasonable person to believe that the identity of the person had been or could easily be ascertained. The fact that she got the number wrong in such circumstances does not indicate unreasonableness.

[80] The facts in Smoluk are similar to those in this case.  The offending driver in that case drove away while the plaintiff was inspecting the damage to his vehicle.  While the driver in Smolukdid get the opportunity to take down a partial plate number Mr. Singh did not.  I find that under the circumstances his expectation the other driver would comply with the law and stop his/her vehicle was a reasonable one.  When the vehicle left the scene as he was getting out of his vehicle, it was too late to get particulars of the licence plate number.  I conclude Mr. Singh acted as a reasonable person would have acted in preserving his rights.

$65,000 Non-Pecuniary Damages For Thoracic Outlet Syndrome With "Mixed" Prognosis


Adding to this site’s public database of BC Thoracic Outlet Syndrome cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TOS Injury with a “mixed” prognosis.
In this week’s case (Singh v. Clay) the Plaintiff was involved in a total of 5 collisions.  He alleged 4 of these caused or aggravated a Thoracic Outlet Injury and sued for damages.  Fault was admitted in all actions.
Mr. Justice Greyell concluded that the Plaintiff did in fact suffer from Thoracic Outlet Syndrome and that the injury was caused, on an indivisible basis, from the collisions.  Damages were assessed on a global basis.  In awarding $65,000 for the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court made the following findings:


[81] Based on the medical reports and testimony of Drs. Keyes and Travlos, I am satisfied the plaintiff suffers from thoracic outlet syndrome which causes him difficulty holding his hands above his head, causes his left arm and shoulder to go numb such that he must lower his arm and “shake” the tingling and numbness out, and that this injury affects him both at work and in his home life as described earlier in this decision.

[82] He is also affected because his injury wakes him several times each night, causing him to be tired the following day.

[83] The plaintiff also suffered low back pain and persistent headaches which lasted for several years after the second accident but which have now cleared up…

[88] I find the prognosis for Mr. Singh is a mixed one.  Dr. Keyes’ diagnosis is a difficult one to understand.  On the one hand he has opined that there is likely some permanent injury to the plaintiff’s neurovascular bundle in the left thoracic outlet space.  On the other hand, he has opined there is no permanent injury or damage of the neurovascular bundle in the left thoracic anatomic space.  Dr. Keyes was clear however Mr. Singh would “almost certainly respond” without surgical intervention and expected that his symptoms would improve “and probably resolve over time”.  Dr. Keyes’ prognosis for the plaintiff’s injuries is “very good to excellent” and he says that his recreational and employment activities would “not be significantly affected over the long term”.  The caveat Dr. Keyes offered to this opinion in the penultimate paragraph was that “repeated injuries to the same areas… would be expected to result in similar symptoms and a more prolonged recovery…”  Mr. Singh was involved in motor vehicle accidents on September 18, 2007 (which he did not tell Dr. Keyes about) and November 1, 2008, and the at-fault accident on March 19, 2007.

[89] At the time of trial Dr. Keyes had not seen the plaintiff for some four years.

[90] Dr. Travlos’s prognosis, based on an assessment made in April 2009 was much more guarded.  As noted above he was of the opinion “there is no real expectation that further treatment is going to magically cure his symptoms.”  Dr. Travlos recommended Mr. Singh commence a structured conditioning program outside the home.  There was no evidence to suggest Mr. Singh has followed Dr. Travlos’s recommendation to engage in a conditioning program outside his home or that he take medication to help relieve his sleeping problems.  Had he done so it is possible these problems would have resolved more quickly than they have.

[91] In my view the injuries suffered by Mr. Singh are more significant than those suffered by the plaintiff in Langley but less serious than those suffered by the plaintiffs in Cimino and Durand.  I assess the plaintiff’s non-pecuniary damages at $65,000.


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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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