Can You Successfully Sue For Injuries in a "No Impact" Collision?
Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff. Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents. In the first incident the Plaintiff was riding a bike down a ramp into a parkade. At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘. The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars. He fell out into the roadway. Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.
The Defendant argued that the Plaintiff should bear some responsibility. Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff. In reaching this decision Mr. Justice Powers noted as follows:
[13] I find that the defendant has not proven that Mr. Bern was contributorily negligent. Mr. Bern was entitled to assume that other people would be acting properly. The evidence does not establish that his speed was excessive to the extent that it was negligent. I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.
[14] Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction. Mr. Bern was forced to act quickly and to apply his brakes forcefully. He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.
[15] I find that Mr. Jung is 100% liable for the accident on June 21, 2007.
The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.
Some of the injuries were aggravated in a subsequent rear end accident. The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents. In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:
[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident. He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms. The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern. The second accident aggravated the problems he had with his shoulder, neck and back. The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety. I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…
[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…
[44] I find that general damages should be $50,000.00. I apportion $15,000.00 of that amount to the second accident. I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries. However, the significant injuries and pain and suffering arise from the first accident.