Plaintiff who completed half-marathon after accident awarded $110,000 in non-pecuniary damages for soft-tissue injuries and headaches

In reasons for judgment released last week, the court in Herman v. Paley, 2017 BCSC 728, awarded the plaintiff $110,000 in non-pecuniary damages following a rear-end collision.  Mr. Justice Greyell wrote:

[6]             As stated, the plaintiff was sitting in the passenger seat of her friend’s vehicle when it was rear-ended while stopped. Ms. Herman testified she was not expecting the impact. She said that prior to the impact she was looking to her right. On impact she said her upper body was “jerked” forward and then back by the shoulder seat belt she was wearing.

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[8]             Ms. Herman is 40 years old and currently resides in Penticton with her husband and two children, Hannah, aged 12 and William, aged nine. Her husband is a clinical pharmacist at Penticton Regional Hospital.

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[94]         Ms. Herman’s injury occurred just as she was about to commence her goal of becoming a full-time regular perinatal nurse. The evidence established she was passionate about pursuing her career and would have done so until retirement. She may be able to work to retirement with the assistance of regular rhizotomy injections to control her pain but not at a level close to her plans absent injury from the Accident. Before the Accident, Ms. Herman was a fit, active person who enjoyed outdoor activities with her husband and young family, friends and relatives. These are activities she can no longer enjoy, much to her loss and that of her family members. She is now a bystander to her families activities rather than a participant. She can no longer pursue the type of nursing career she had hoped for. She has suffered a significant injury which will require reduced work hours and injections to control her pain for the rest of her life. Her pain is significant enough that she cannot work more than two continuous 12 hour shifts. Even when she works two consecutive such shifts she is in pain the following day.

[95]         The defendant takes umbrage at the fact the plaintiff trained for and ran (walked) a half marathon in 2015. I view this attempt, which was undertaken with training assistance from her care givers at the time, not as evidence the plaintiff was returning to her former activities but as a stoic effort by Ms. Herman to try to get back to the pre-accident activities she enjoyed. While she completed the run/walk she learned the activity was not something she could continue to do. The fact she tried is one example of her stoicism: other examples are her efforts to work long and back-to-back shifts notwithstanding the pain she is in and her efforts to seek out other work which may be more accommodating to her injuries as demonstrated by her numerous applications for nursing positions.

[96]         After reviewing the authorities relied on by counsel I am of the view an award of $110,000 reflects a proper award for non-pecuniary loss.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0728.htm

Court awards $110,000 in non-pecuniary damages for soft-tissue injuries, headaches, and dizziness

In reasons for judgment released today, the court in Rousta v. MacKay, 2017 BCSC 644, awarded the plaintiff $110,000 in non-pecuniary damages soft-tissue injuries, headaches, and dizziness sustained in a rear-end collision.  The plaintiff in Rousta was 59 at the time of the accident and continued to experience pain at the time of trial.  In giving reasons, Mr. Justice Skolrood wrote:

[80]         The evidence establishes that the plaintiff suffered soft tissue injuries to her neck, shoulders and back as well as an injury to her right hip as a result of the accident. I accept her evidence that she still experiences pain in these areas, although I note the evidence of both Dr. Cameron and Dr. Dost that when they examined her, both in the summer of 2016, she had a full range of motion in her neck and back. A fair assessment is that these injuries will continue to cause her some pain and discomfort but are not by themselves disabling.

[81]         The evidence also establishes that the plaintiff suffered an inner ear injury with resulting visual vestibular mismatch which continues to cause her difficulty, although not to the same degree as shortly following the accident. Again referring to Dr. Cameron’s and Dr. Dost’s examinations of the plaintiff in mid-2016, both indicated normal balance and coordination.

[82]         The plaintiff has also experienced consistent headaches since the accident, and I am satisfied that they still continue to bother her, although Dr. Cameron and Dr. Barton are optimistic about improvement with better management.

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[94]         Considering the impacts of the accident on the plaintiff, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $110,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0644.htm

Court awards $110,000 in non-pecuniary damages for soft-tissue injuries

In reasons for judgment released today, the court in Leach v. Jesson, 2017 BCSC 577, awarded a 50-year-old plaintiff $110,000 in non-pecuniary damages for soft-tissue injuries following a serious rear-end collision.  Mr. Justice Funt wrote:

[7]             At the time of trial, the plaintiff was 50 years old and had been married to his spouse for 24 years. They have four adult children.

[8]             For the past 25 years, the plaintiff has worked in both residential and commercial construction. In recent years, the residential construction has involved home renovations.

[24]         As a result of the Accident, the plaintiff now suffers from neck and shoulder pain, low back pain, and headaches. Initially, as the plaintiff described, he had no strength in his neck and had to support it. He now has stability in his neck but there is considerable residual pain which has plateaued.

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[69]         Recognizing the degree of the plaintiff’s injuries and their effect on his enjoyment of work, family, and leisure activities, and the plaintiff’s age, the Court will award $110,000 as non-pecuniary damages.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0577.htm

Defendant who perjured himself and presented phony witness still successful in arguing contributory negligence

In a somewhat-bizarre decision released today, the court in Dizon v. Losier, 2017 BCSC 431, dealt with a defendant who admitted to perjuring himself and presenting a phony witness during the course of a personal injury trial.  The facts in Dizon involved a relatively routine rear-end motor vehicle accident.  Unfortunately for the defendant, however, he had forgotten to renew his car insurance at the time of the accident, and therefore had no insurance coverage.  As such, the defendant was forced to defend the action himself.  During the course of the trial the defendant presented a phony witness who claimed he had witnessed the crash, and that the plaintiff was at fault.  This witness also claimed he had never met the defendant.  Somewhat predictably, both the defendant and the witness crumbled under further questioning, and both admitted they knew each other and had made the whole thing up.  Despite this admitted perjury from both men, the trial judge still found the plaintiff 15% at fault for the rear-end collision.  Somewhat strangely, it does not appear that the defendant or the witness were charged with perjury as a result of their testimony, with the only sanction being the awarding of special costs for one day of the trial.  In giving reasons, Madam Justice Russell said as follows:

[1]             On August 26, 2014, the plaintiff, Charlston Dizon, suffered injury as a result of his Mercedes SUV being hit from behind by the truck of the defendant, Joseph Losier.

[2]             The defendant’s truck was uninsured. This was due to him inadvertently re-insuring the wrong vehicle. Mr. Losier drives two vehicles, and the insurance for the truck he was driving during the accident expired the day before the insurance for his other vehicle.

[3]             As a consequence, the defendant represented himself at trial, contesting both liability and damages.

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[13]         The defendant alleges that the plaintiff was contributorily negligent. This is because, he maintains, the plaintiff stopped suddenly and for no reason, thus neglecting to act reasonably for the care of others on the road.

[14]         A unique issue that has arisen in this case is that of the defendant’s perjury. Its effect on the court’s ability to weigh any of his evidence is an issue in contention, and must be assessed by this Court.

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[43]         Mr. Losier called a witness who provided completely concocted evidence about seeing the plaintiff’s car stop for no reason just before the accident. This witness, Mr. Dale Carmount, was asked by this Court if he had known the defendant before the accident. This was done in order to test whether there had been any complicity with respect to this convenient account of events. Mr. Carmount denied having met the plaintiff before the accident. Instead, he said he had responded to a notice posted by Mr. Losier asking for witnesses to the accident.

[44]         In cross-examination, plaintiff’s counsel referred to a Facebook page that Mr. Carmount denied existed, but which was clearly that of Mr. Carmount, and then asked him about family relationships. Mr. Carmount then revealed that, through family in Ontario, Mr. Carmount and Mr. Losier were acquainted before the accident.

[45]         In light of this evidence, I find that the two of them developed a statement for Mr. Carmount to sign that was completely untrue. Mr. Carmount had not witnessed the accident occurring as he had stated under oath.

[46]         That this evidence amounted to perjury, for which both participants could have been prosecuted, was not lost on Mr. Losier. He tendered an apology to the Court.

[50]         ... I find that the evidence supports the defendant’s contention that the plaintiff played a key role in causing the accident. The plaintiff’s statement to the RCMP undermines the idea that, at the time of the accident, the light was amber. Instead, I find that, in suddenly braking, the plaintiff failed to take reasonable care for his own interests, an action that was causally connected to his injuries. The nature of the plaintiff’s injuries is consistent with those one would suffer from being rear ended after suddenly braking. Consequently, this was a foreseeable risk directly related to the plaintiff’s carelessness, and so there are no remoteness issues.

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[52]         The defendant bears 85% responsibility for the accident and for the damages that flow from it. The plaintiff, due to his sudden braking, bears the responsibility for the remaining 15%.

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[83]         The plaintiff will have his costs of the action, subject to any submissions.

[84]         In addition, the plaintiff will be awarded one day of special costs for the unnecessary delay in this matter for the consideration of the perjured evidence from the defendant.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0431.htm

Court finds rear-end driver not liable for accident due to "sudden and unsafe lane change" by plaintiff

In reasons for judgment released this morning, the court in Varga v. Kondola, 2016 BCSC 2406, was presented with the problem of determining liability for a rear-end collision.  In Varga, the defendant argued he was not at fault for rear-ending the plaintiff, as the plaintiff had "suddenly" swerved in front of him leaving him no time to stop and avoid the collision.  Madam Justice Griffin ultimately agreed with the defendant, finding the plaintiff 75% at fault for the accident:

[94]         I have found the evidence of Mr. Kondola to be more consistent with the weight of the other evidence and more inherently probable than Ms. Varga’s evidence. I therefore prefer his evidence over hers.

[95]         Considering all the evidence, I am satisfied on a balance of probabilities that Ms. Varga made an unsafe lane change.

[108]     ...Mr. Kondola’s evidence that Ms. Varga made a sudden lane change and then braked is consistent with the other circumstances, most importantly, how close the parties were to the intersection at the time of the collision, combined with Ms. Varga’s desire to make it to the left-turn lane.

[114]     In short, Mr. Kondola’s evidence is consistent with the most probable scenario that Ms. Varga was trying too late and too close to the intersection to make it over to the left-turn lane. Accepting that, I find his evidence that she was in the lane to his right, lane 1, before suddenly turning in front of him, entirely consistent with the probable version of events.

[115]     I therefore accept Mr. Kondola’s evidence that Ms. Varga was driving in lane 1 when she suddenly made a lane change in front of him into lane 2, simultaneously while putting on her blinker and braking. I find that Mr. Kondola did not have the ability to avoid colliding with her.

[117]     I conclude that Ms. Varga did not meet her obligations under s. 151(a) of the Act as she turned left into another lane without first ascertaining that she could do so safely and without affecting the travel of another vehicle. I find therefore that she negligently caused the accident.

[127]     It is clear that Ms. Varga bears the greater responsibility for the accident. I find Ms. Varga 75% liable for the accident and Mr. Kondola 25% liable.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2406.htm