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As readers of this blog know the BC Government recently overhauled the Rules of Court to limit the number of expert witnesses that can be used in personal injury prosecutions.  This rule is subject to a constitutional challenge and its future is uncertain.  The rule was implemented with the goal of simply saving ICBC money.

With this background in mind interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, commenting on “ironic” submissions from a Defendant relating to the need for expert evidence.

In today’s case (Sekhon v. Gill) the Plaintiff was involved in three collisions and sued for damages.  Liability was admitted for all three crashes.  In the course of trial the Plaintiff presented various expert evidence.  The Defendant suggested even more experts should have been called by the Plaintiff and requested that an adverse inference be made because the Plaintiff did not call her family physician to testify.

Mr. Justice Smith refused to draw an adverse inference and made the following comments about the “ironic” request by ICBC that a Plaintiff should call more expert evidence when they lobbied for rule changes limiting the rights of litigants regarding expert testimony:

[59]         Based on the evidence in this case and the currently applicable authorities, I find there is no basis on which to draw the adverse inference sought by the defendants.

[60]         There is also a further, emerging reason for the court to be cautious about drawing an adverse inference against any party for failing to call specific or additional medical experts. The Lieutenant Governor in Council has recently enacted Rule 11-8 of the Supreme Court Civil Rules…

[61]         This new rule does not apply to cases coming to trial before December 31, 2019 (see Rule 11-8(11)(a)(ii) of the Supreme Court Civil Rules), so does not directly govern this case. However, it clearly indicates a policy to place limits on the number of experts appearing in these kind of cases and the associated expense to the parties.  The Attorney-General has publicly stated that the rule was introduced as part of an effort to control the Insurance Corporation of British Columbia’s litigation costs.  In the circumstances, it is more than a little ironic to hear defence counsel argue that the plaintiff has failed to call enough experts.

[62]         In Mohamud, Fisher J. referred to a plaintiff being expected to call “all doctors” who attended her for important aspects of her injuries. To the extent that was intended to refer to those doctors being called to give expert opinion, that is an expectation the court will no longer be able to have under the new rule. Indeed, plaintiffs who have been treated by multiple doctors will be prima facie barred from calling all of them as experts, no matter how much assistance they may have to offer the court.

[63]         Where a case requires opinions from specialists who assess the plaintiff for medical legal purposes only, a plaintiff may be barred from introducing any opinions from day-to-day treating physicians. The circumstances in which the court can be asked to draw an adverse inference may therefore become even more limited when the new rule comes into effect.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for personal injuries which included the successful recovery of money spent for CBD oil and medical marijuana to treat chronic pain.

In today’s case (Culver v. Skrypnyk) the Plaintiff was injured in two collisions.  These resulted in partly disabling chronic back and leg pain.  The treatments attempted over the years included the use of CBD oil and medical marijuana.  The Court awarded recovery for the costs of these medications noting they were reasonably incurred special damages.  In reaching this conclusion Mr. Justice Davies provided the following reasons:

[258]     Mr. Culver incurred the expense of $903.32 for medical marihuana and CBD oil to help with the pain and difficulty with sleeping that he was suffering from because of his injuries. Dr. Burlin suggested that he do so and Mr. Culver reports that he obtained some relief from his use of those products.

[259]     Although I denied Mr. Culver’s claim for purchase of CBD oil as a component of his cost of future care I did so because of Dr. Burlin’s inability to testify as to the future benefits of that product for Mr. Culver’s future care.

[260]     I am satisfied that the lack of proof of medical necessity for future care does not preclude reimbursement of Mr. Culver for the costs incurred by him for medical marihuana and CBD oil as special damages.

[261]     I find that the expenditure of the funds for marihuana and CBD oil at the time those cost were incurred in circumstances in which Dr. Burlin was prepared to suggest the use of those products to assist Mr. Culver’s recovery establishes medical justification. Mr. Culver’s testimony as to the benefits he received from the expense establishes the reasonableness of the expense incurred. I am satisfied that the products would not have been purchased but for the injuries suffered by Mr. Culver as a result of the defendants’ negligence.

[262]     In result I find that Mr. Culver is entitled to reimbursement by the defendants for the special damages he has incurred in the total amount of $18,091.

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Reasons for judgement were published today by the BC Supreme Court, Campbell River Registry, assessing damages for chronic consequences from a head injury.

In today’s case (Mickelson v. Sodomsky) the 50 year old plaintiff was involved in a 2015 T-bone collision.  The Defendant admitted liability.  The crash resulted in a mild traumatic brain injury and the plaintiff developed post concussion syndrome with a poor prognosis for further recovery.  The consequences of the injury were largely disabling.  In assessing non-pecuniary damages at $200,000 Mr. Justice Thompson provided the following reasons:

[35]         I accept the evidence of Dr. Cameron and Dr. Muir that Ms. Mickelson suffered a mild traumatic brain injury in the MVA. She continues to suffer the effects of a post-concussive syndrome. I conclude that she will continue to adapt to these deficits, but the evidence does not make room for any optimism that she will achieve further recovery.

[36]         Over the period of time since the MVA, I am satisfied on the basis of all of the evidence that her cognitive issues have been multi-factorial: I accept that it is difficult to tease out how much of her cognitive difficulties are accounted for by post-concussive syndrome versus depression and anxiety versus chronic pain. That said, as time has gone on, the partial lifting of her depression and the decrease in her pain have not resulted in a significant improvement in cognitive function. This lends weight to Dr. Friesen’s interpretation of the neuropsychological test findings as being consistent with frontal lobe injury.

[37]         I am satisfied on a balance of probabilities that, but for the MVA, Ms. Mickelson would not have the cognitive deficits that partially disable her. I conclude that Ms. Mickelson falls into the 10 to 20 percent of unfortunate people that do not recover from the effects of a mild traumatic brain injury…

[41]         In fixing the amount of non-pecuniary damages in this case, the central consideration is the post-concussive syndrome. It has altered Ms. Mickelson’s previously vibrant personality and stunted her capacity to function at a high level. It has also resulted in termination of her education plans and career plans. Considering all of the Stapley circumstances, and that she has lost a modest amount of her capacity for domestic chores, I assess her non-pecuniary damages at $200,000.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a severe ankle injury.

In today’s case (Chau v. Pereira) the Plaintiff was struck by a vehicle while walking in a marked crosswalk.  The Defendant denied liability but was found fully responsible at trial.   The crash resulted in a severe ankle injury with post traumatic arthritis that was expected to deteriorate to the likely stage of needing fusion or joint replacement.  In assessing non-pecuniary damages at $140,000 Mr. Justice Baird provided the following reasons:

[15]         The plaintiff’s main medical witness was Kevin Wing, an orthopaedic surgeon. He testified that as a result of the accident the plaintiff suffered a severe fracture of his right ankle, with significant related soft tissue injury. Post-traumatic arthritis has set in, resulting in a restricted range of motion and activity-related ankle pain. According to Dr. Wing this is likely to get worse over time. I have no difficulty accepting this. I am satisfied overall that in the years ahead the plaintiff will likely experience a deterioration in his ankle functioning and will ultimately develop what Dr. Wing called “end stage” or seriously debilitating arthritis in this area of his anatomy.

[16]         According to Dr. Wing, the plaintiff may at some point require ankle fusion or ankle replacement surgery. Either procedure typically requires patients to be off work for six months and undergo several months of therapy and rehabilitation. Dr. Wing predicted that even after such a surgery the plaintiff will most likely continue to suffer from significant disability associated with his badly damaged ankle. Dr. Wing testified that the injury had likely been caused by the infliction of thousands of pounds of force on the ankle. The ankle joint was shattered into pieces. The surrounding soft tissue and ligaments critical to ankle function were badly damaged. He likened the injury to an “explosion”. He confirmed that this is a serious and permanently debilitating injury with obvious implications for the plaintiff’s quality of life and ability to earn an income.

[17]         The plaintiff’s other expert witnesses were Min Kyi, a functional capacity therapy expert who evaluated the plaintiff’s diminished physical abilities, which I have already discussed; and Dr. Roy O’Shaughnessy, a psychiatry expert who testified very briefly about the plaintiff’s problems with anxiety following the collision…

[26]         Having considered these authorities, the Stapley factors, the evidence, the personal circumstances of the plaintiff, and the submissions of counsel, I assess non-pecuniary damages in the amount of $140,000.

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Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic and disabling psychiatric injuries.

In the recent case (Gill v. Aperdoorn) the Plaintiff was injured in a 2015 collision.  The Defendant admitted liability.  The crash resulted in severe depression and PTSD.  The injuries were disabling and the prognosis for further improvement was not optimistic.  In assessing non-pecuniary damages at $200,000 Madam Justice Gropper provided the following reasons:

[51]         Applying those factors, Mr. Gill is now 49 years old and he has been suffering from his injury for almost four years. The treating doctors and Dr. Tarzwell opine that Mr. Gill’s psychological problems continue and will not be cured. Mr. Gill is isolated from his peers. Mr. Gill’s ambition and drive towards his career goals have dissipated. Mr. Gill’s future career prospects, if there are any, will likely include work that is less challenging, interesting or rewarding for him. Mr. Gill has lost his own sense of self-worth and confidence. Mr. Gill’s degree of emotional suffering has been extreme and reflects a lonely, frustrated, and frightened individual. Mr. Gill’s family, marital and social relationships have been directly impaired, as have his physical and mental abilities. Mr. Gill has completely lost his pre‑accident lifestyle. Mr. Gill is unable to bear his loss stoically.

[52]         The defence argues that the experts have made a positive diagnosis in that the plaintiff can improve and can be rehabilitated to return to his pre-accident employment status. The defence argues that it is probable, although not certain, that Mr. Gill will return to longshoreman’s work.

[53]         The expert opinions are not optimistic about Mr. Gill’s recovery or his return to work. Though the most recent residential treatment program demonstrates some glimmer of hope, it is just that. It is reasonable that Dr. Tarzwell acknowledges Mr. Gill may get better, but he does not suggest that it is likely. That evidence does not meet the balance of probabilities standard.

[56]         Mr. Gill’s physical symptoms have been secondary to his psychological injuries. The psychological injuries have had a devastating impact on every aspect of his life. He was a happy, healthy, ambitious person. He was involved in a loving marriage and had close relationships with both his children. He was pursuing a job that he loved. He enjoyed socializing, he was concerned about his appearance, and he was physically active. His future was bright. That is no longer the case. Mr. Gill is a shadow of his former self. His interaction with his friends and family is non‑existent. The effect of these injuries on his day-to-day functioning is profound. Some of his family, friends, and the experts described that Mr. Gill is unable to even engage in basic health self-care and personal hygiene.

[57]         Mr. Gill has suicidal ideation that manifested itself in his attempt to take his own life in January 2018.

[58]         I have reviewed the authorities provided by the parties. I find the decision of Felix v. Hearne, 2011 BCSC 1236 to be apposite. In that case, the plaintiff suffered from the combined effects of physical injuries along with a “pervasive emotional disorder” that was “devastating to [her] personal and vocational life” (at para. 47). The court found that the plaintiff was no longer self-reliant and could not engage in her pre-accident activities or social life. Non-pecuniary damages were assessed at $200,000.

[59]         I have taken a global approach to non-pecuniary damages and consolidate both Mr. Gill’s physical and psychological injuries in assessing Mr. Gill’s non‑pecuniary damages at $200,000.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, addressing fault and damages for a fall a Plaintiff sustained while walking on a wet boardwalk.

In today’s case (Owens v. Steveston Waterfront Properties Inc.) the Plaintiff fell and broke her right kneecap in an incident described as follows:

the plaintiff was walking on a part of a boardwalk in Steveson, of which the defendant is the occupier, when she slipped and fell (the “Incident”).  She was walking on the boardwalk after having a meal (a soup and one beer) at the Restaurant.  The plaintiff was 61 years old at the time of the Incident.  She had followed her husband, Mr. Owens, who was also in his sixties, down a ramp with a small incline that was just outside the Restaurant to the boardwalk.  Although the wooden planks of the boardwalk looked dry, she slipped, landing on her knee.  She testified that, had there been a sign warning of a slipping hazard, she would not have tried to walk down the ramp to the boardwalk.

The Court found she fell due to the slipperiness of the boardwalk and that it did not appear wet.  The court noted the Defendant could have placed a warning sign or, at relatively low cost, installed strips to increase the friction for patrons walking on the boardwalk.  In finding the Defendant liable Madam Justice Maisonville provided the following reasons:

[110]     I find that the risk respecting the boardwalk was unreasonable. The defendant has a positive duty to take reasonable care to make the boardwalk safe to be walked on. Although evidence of local practice is not determinative, having considered that occupiers for the neighbouring boardwalks had mounted signs warning of the potential slipping hazard, I am persuaded that the facts that the boardwalk could be slippery when wet and that this wetness would not always be visually noticeable to visitors, amounts to a recognizable risk that required some positive action on the part of the defendant.

[111]     I do not accept the defendant’s characterization that wetness was an “inherent risk” of such a nature that the plaintiff should have been aware of it being slippery, given she had considered this potential and indeed looked for evidence of that risk. Given no visual clues arise from the wood itself I find that a sign should have been erected at the top of the ramp to warn that it could be slippery given the variable weather conditions at the site.

[112]     There was ease in avoiding the risk by either putting a frictional surface such as a metal grate on the boardwalk to reduce the slipperiness that wetness would cause, or even erecting a sign, warning visitors of the invisible danger. The costs of reducing the risk of slipperiness would have been minimal. As such, in all the circumstances, I find that the defendant breached its duty under the OLA to the plaintiff in failing to take any steps to reduce or eliminate the risk posed by the boardwalk becoming slippery when wet…

[121]     The breach of duty by the defendant, accordingly, is its failure to put up a caution sign. But for there being a sign visible to someone approaching the boardwalk, the Incident would not have occurred. Therefore, I find the plaintiff has established on a balance of probabilities that the defendant is liable for any damages flowing from the Incident.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision.

In today’s case (Rabiei v. Oster) the Plaintiff was involved in a 2016 collision.  The Defendants accepted fault.  The crash resulted in various soft tissue injuries resulting in chronic pain in the plaintiff’s neck, back and shoulder.  These injuries resulted in some impairment in the Plaintiff’s ability to work and also impacted activities outside work.  Full recovery was not expected.  In assessing non-pecuniary damages at $70, 000 Madam Justice Adair provided the following reasons:

[140]     I find that, as a result of the accident, Ms. Rabiei sustained soft tissue injuries to her neck, upper, mid and lower back.  These diagnoses are made by both Dr. Stewart, and by Dr. Parhar, who saw and examined Ms. Rabiei about a month after the accident.  These are not inconsistent with Dr. Goel’s impression concerning Ms. Rabiei’s primary injury (although he was unable to opine on what the injury was related to).  For a period of some months after the accident, she also suffered from headaches.  Physiotherapy treatments, which began at the end of April and continued until the middle of July 2016, were helpful in addressing her symptoms and improving her ability to function.  Her headaches and lower back symptoms eventually resolved.  However, Ms. Rabiei remained off work for the balance of 2016, because she remained symptomatic in her neck, upper back and left shoulder and (at least in part) because of the advice she received from Dr. Parhar.  The pain symptoms in her neck, upper back and left shoulder, while they improved, have persisted and become chronic.  Although the symptoms are not debilitating, and they come and go, they impair Ms. Rabiei’s ability to function at her pre-accident level, both with respect to her work and her activities outside of work.  Further medical improvement is unlikely, although if Ms. Rabiei follows through on recommendations to work with a kinesiologist on an active rehabilitation program, she has the opportunity to become stronger and more functional…

[148]     Ms. Rabiei is a young woman, just 30.  She has many years ahead of her to live with chronic pain symptoms.  When injured, she was just establishing a new career in B.C.  Her pre-accident work history once she arrived in B.C. showed that she was willing to work hard and was ambitious.  As a result of the injuries she sustained in the accident, she has been and will be working with pain, and is less able to pursue career goals she had for herself.  The satisfaction she can enjoy from her work is diminished.  She is less independent at home. 

[149]     Following the accident, she has been less socially active.  However, beginning with her job at Fresh, her work schedule (where she worked Fridays and weekends) must be considered a factor – she has less time available to go out dancing and to clubs with friends. 

[150]     Ms. Rabiei has given up playing the violin, which is a major loss for her.  It has also affected her social life as she and Mr. Hekmatshoar no longer get together regularly to perform.

[151]      In view of my findings above, and taking into account the factors mentioned in Stapley (including in particular Ms. Rabiei’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $70,000.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving a cyclist struck by a vehicle.

In today’s case (Dhanoya v. Stephens) the Plaintiff cyclist rode into a marked crosswalk without stopping and was struck by a vehicle.  The Court found the cyclist was fully at fault for the collision and had the cyclist kept a proper lookout the collision could have been avoided.  In finding the cyclist solely liable Madam Justice Dillon provided the following reasons:

[13]         After consideration of all of the evidence and particularly after considering the evidence of the plaintiff in the context of all of the evidence and the surrounding circumstances, the evidence of the defendants and Woermke is accepted as to how the accident occurred. It is accepted that Jodie Stephens first saw the plaintiff as the plaintiff approached the intersection on his bike. Although Mr. Stephens was inconsistent as to his exact position when he first saw the plaintiff, it was from 15 to 30 feet from the crosswalk, close enough for the driver to have little option in the circumstances. He was travelling at about 35 kph initially and this estimate of his original speed was supported by Woermke. It was apparent to Mr. Stephens that the plaintiff was not going to stop. Mr. Stephens applied his brakes, managing to slow down to five to ten kph before impact. As described by Woermke, the plaintiff rolled into the crosswalk without stopping or looking. The plaintiff admitted that he bicycled across the crosswalk. He said that he stopped at the crosswalk, put his foot down, and looked for cars for a minute. He did not see the defendants’ vehicle approaching: if he had, he stated that he would not have entered the crosswalk. Clearly, the vehicle was there to be seen. Mr. Stephens realized that the plaintiff had not seen the Stephens vehicle and had not made eye contact so to judge his own safety. The plaintiff was on his usual route, on a bright day, getting close to his destination, with a perception that there were few cars on the road. In the scenario of little perceived traffic, it is concluded that it was the plaintiff’s usual practice to bike across the crosswalk. He followed that practice on the day of the accident. He did not stop and look both ways, else he would have seen the approaching vehicle which was 30 feet away from the crosswalk at most.

[14]         The driver of a motor vehicle has a general duty of care to keep adequate lookout for recognizable hazards on the road (Dobre v. Langley, 2011 BCSC 1315 at para. 34). A driver approaching a marked crosswalk assumes a heightened duty to take extreme care and maintain a vigilant lookout for those that might be in the crosswalk (Dobre at paras. 35 and 43). It is important to remember that the standard of care is not one of perfection, but whether the driver acted in a manner which an ordinarily prudent person would act (Hadden v. Lynch, 2008 BCSC 295 at para. 69).

[15]         A cyclist shares the same rights and duties with drivers of a motor vehicle (Dobre at para. 32). The duties specific to a cyclist are set out in s. 183 Motor Vehicle Act, R.S.B.C. 1996, c. 318. The plaintiff was riding his bicycle in a crosswalk in contravention of s.183 (2)(b) Motor Vehicle Act. He had a duty to keep a proper lookout (Dobre at para. 35).

[16]         Because of this violation of the traffic law, the plaintiff assumed a heightened duty to ensure his own safety, particularly to ensure that he was seen by other drivers (Hadden at para. 59; Dobre at para. 39; Callahan v. Kim, 2012 BCSC 1615 at para. 23). As acknowledged by the plaintiff, he did not have the statutory right of way when he bicycled across the crosswalk because he was not a pedestrian (Dobre at para. 34). Nonetheless, a reasonably careful and skillful driver has a duty to give way to a user of a crosswalk where there is an expectation that pedestrians and other users will be present (Callahan at para. 18). However, in the circumstance of the plaintiff’s failure to yield the right of way, he must establish that, after the defendant became aware that the plaintiff was proceeding onto the crosswalk, the defendant had sufficient opportunity to avoid the accident of which a reasonably careful and skilled driver would have availed himself (Hadden, at paras. 67-68). The plaintiff must establish that he was a recognizable hazard and that his actions left the defendant with enough time and distance to see and avoid striking him (Dobre at para. 34).

[17]         The plaintiff alleges that Mr. Stephens was not operating his vehicle at a reasonable speed in the circumstances, notwithstanding that he was travelling at below the speed limit. The plaintiff also says that Mr. Stephens was distracted by the conversation in the car, so failing to take due care and attention. The plaintiff maintained that the defendant breached the standard of care when he failed to yield the right of way to the user of the crosswalk and that this failure was the cause of the accident.

[18]         Mr. Stephens saw the plaintiff as he cycled towards the crosswalk and anticipated that the plaintiff was going to cycle right into the crosswalk. Although he admitted that he was in conversation with others in the vehicle, the evidence does not establish that he was so distracted so as not to notice the plaintiff as he was at the intersection and as he entered the crosswalk. The defendant was not speeding. He immediately slowed, braking to avoid a collision. He also tried to make eye contact with the cyclist. The defendant did not have sufficient opportunity to avoid the accident. A reasonably careful and skilful driver could not have avoided this accident.

[19]         The plaintiff did not exercise a reasonable degree of care when he cycled into the crosswalk without looking for vehicles. He did not exercise the expected degree of care for his own safety. He assumed that there was no traffic and cycled into the crosswalk without looking. Had he looked, he would have seen the defendant’s vehicle. Had he looked, the plaintiff would have made eye contact with Mr. Stephens who was alert to make contact. Had he looked, the plaintiff would not have proceeded into the crosswalk. Had he looked, this accident could have been avoided. The plaintiff is the author of his own misfortune.

[20]         The plaintiff is 100% at fault for the accident of November 21, 2015.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and post concussive problems caused by a collision.

In today’s case (Dornan v. Stephens) the Plaintiff was involved in a 2016 rear end collision.  The Defendants admitted fault.  The Plaintiff suffered a variety of injuries including a mild traumatic brain injury and post concussion syndrome which became chronic.

Mr. Justice Mayer assessed non-pecuniary damages at $200,000 for these injuries.  In arriving at this assessment the Court provided the following reasons:

[72]         In my view, the expert medical evidence and evidence of Mr. Dornan, his parents and Janna Kapp establishes on a balance of probabilities that the defendants’ negligence materially contributed the following injuries:

a)    Mild traumatic brain injury;

b)    Post-concussion syndrome, which has become chronic;

c)     Adjustment disorder with mixed depression and anxiety;

d)    Chronic post-traumatic headaches; and

e)    Soft tissue injuries to the neck, back and shoulders.   

[77]         Mr. Dornan was a young man at the time of the accident and has many years of life ahead of him. The evidence establishes that the Accident had a significant, immediate impact on Mr. Dornan’s life in that, since it occurred, he has been unable to work and carry out virtually all of the recreational activities that he had previously enjoyed. He had plans to launch his career as an adventure photographer which are no longer possible. As well, his social life has been impacted as a result of a number of his post-Accident symptoms and in particular his anxiety.  

[78]         Despite the severity of his symptoms post-Accident, the evidence establishes that some of Mr. Dornan’s symptoms have resolved or have significantly improved. For example, the records of Dr. Travlos indicate and I find, that Mr. Dornan’s dizziness levels have decreased, his energy levels and appetite are back to normal and that his shoulders are now pain free. In addition, a number of medical experts recorded, and I find, that there has been some improvement to Mr. Dornan’s principal on-going symptoms of anxiety and headaches.  ..

In a somewhat unusual turn the Court then reduced this assessment by 30% on the basis that the Plaintiff, had he not been injured in the collision, likely would have suffered further concussions from physical hobbies he enjoyed.  It is unknown if the Plaintiff plans on appealing this reduction as it is unusual to see a reduction based on a conclusion that a plaintiff would further injure themselves absent a tort.  In any event the Court provided the following reasons in arriving at a 30% deduction:

[130]      As confirmed by the Court of Appeal in Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 it is open to a trial judge to reduce non-pecuniary damages and damages awarded in respect of future loss, which for the latter category reflects the possibility that “ultimately” a plaintiff would in any event have experienced serious health problems. There is authority for reducing non-pecuniary damages to reflect a pre-existing condition. (see Bouchard, 2012 BCCA 331 at paras. 21,23 and 24; Zacharias v. Leys, 2005 BCCA 560, at paras. 25, 26)

[131]     In this case there is evidence establishing that absent the Accident it is likely that Mr. Dornan would have experienced a further concussion resulting in serious post-concussive symptoms. This risk of further concussion is apparent from the report of Dr. Kemble whose evidence was that even before the Accident, given Mr. Dornan’s history of concussions, he would have recommended that he cease vigorous sports related activities.  

[132]     Mr. Dornan had suffered approximately one concussion per year from the age of 16, which included, on average, one serious concussion resulting in a loss of consciousness every two years. His intention was to continue to engage in adventure photography, which I understood focussed on high-risk skiing, and his recreational pursuits, included hockey and downhill mountain biking. In my view, all of these activities involve a moderate to high degree of risk of falls and therefore a risk of a further head-impact resulting in concussion.  

[133]     Given the frequency of Mr. Dornan’s previous concussions and his recreational pursuits, which he had no intention of abandoning, I consider it likely that absent the Accident he would have sustained a further concussion within one to three years of sustaining the November 2015 concussion. In these circumstances, I consider it appropriate to apply a reduction of 30% to the awards for non-pecuniary damages, past loss of income, loss future earning capacity and future costs. Mr. Dornan remains entitled to 100% of the amount assessed for special damages.  

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As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged.  The reason for this is quite simple.  When a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.

If you are the victim of a crash and your vehicle is repaired but now worth less the loss can be legally recoverable from the at-fault driver.  The claim would be for ‘accelerated depreciation‘.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with such a claim.

In the recent case (Jiwa v. Xu) the Plaintiff was involved in a 2017 collision.  The Defendant admitted fault.  The Plaintiff was operating a brand new 2017 BMW 530i which was purchased shortly before the collision for $77,127.50.

The crash was significant resulting in  over $31,000 of repair costs.  After the vehicle was repaired the Plaintiff traded it back to the dealership for $50,000.  The Plaintiff sued to recover damages for the ‘accelerated depreciation‘.

In accepting the claim and ordering that $13,500 be paid for the loss Madam Justice Murray provided the following reasons:

[23]         Taking into account all of the evidence I find that the BMW did depreciate when it was driven off the lot. That leaves the question of how much. In my view Mr. Scarrow is too high and Mr. Cino too low. The right amount is somewhere in between.

[24]         In my view a reasonable amount of immediate depreciation is $10,000.

[25]         With respect to the ACV I do not accept Mr. Cino’s definition. It is well known that a person generally gets less for their car “selling” or trading it in to a car dealer than selling it privately. In this case however given the amount of damage to the vehicle and the break on tax I accept Mr. Scarrow’s opinion that the plaintiff likely would not have received more in a private sale.

[26]         Finally concerning accelerated depreciation, I do not accept Mr. Cino’s long held opinion that a well repaired vehicle does not suffer accelerated depreciation. I say that this opinion is long held as it was the subject of comment by Grauer J. over eight years ago in Signorello v. Khan, 2010 BCSC 1448:

[16]      While it would be unfair to describe Mr. Cino as an advocate for the party who retained him, he struck me as someone who is certainly an advocate for his position that, in general, a motor vehicle that is damaged in an accident does not suffer accelerated depreciation so long as it is repaired properly. It is a position he has advocated for a long time. As he stated, he set out many years ago to prove that the use of the damage declaration by automobile dealers to reduce the trade-in value of vehicles subject to those declarations, was just a sales tool, and that so long as the vehicles had been repaired properly, they were in fact worth as much as similar vehicles that had not been damaged.

[17]      To this end, he prepared and published studies in 1998 and 1999 and titled “Accelerated Depreciation in British Columbia”.

[18]      But in my view, the statistics that support his studies are not helpful in solving the problem before us here. There is nowhere near enough data available to be able to extract the proposition for which he contends.

[27]         I accept Grauer J.’s remarks. Not only does Mr. Cino’s opinion fly in the face of common sense, it is also at odds with his evidence at examination for discovery when he testified that most dealers would not want the car on their lot as it has too big a damage declaration on it. The only reasonable inference to be drawn from that comment is that it would be near impossible to sell. That is inconsistent with a car that is good as new.

[28]         Having regard to all of the evidence I find damages for accelerated depreciation to be $13,500 plus taxes.

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