$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

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.

Slip and Fall Claim Succeeds After Plaintiff Injured on Wet Boardwalk

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.

Cyclist Struck in Marked Crosswalk Found 100% at Fault for Crash

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.

$160,000 Non-Pecuniary Assessment for Head Injury With Lingering Cognitive Issues

Source: Erik Magraken BC Injury and ICBC Claims Blog

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury caused by a collision.

In the recent case (Dube v. Dube) the Plaintiff was injured as a passenger involved in a single vehicle collision.  The Defendant accepted fault.  The crash caused a variety of injuries including a traumatic brain injury which caused cognitive deficits which were expected to linger indefinitely.  In assessing non-pecuniary damages at $160,000 Madam Justice Burke provided the following reasons:

0]         Based on my review of the medical evidence, I find that Ms. Dube suffered a head injury or MTBI, and physical injuries to her head, neck, back, shoulders, right leg, and abrasions and contusions to her chest, abdomen and elbow. The impact of the MTBI has created the debilitating injuries affecting Ms. Dube’s cognitive functioning. She has headaches, fatigue, memory issues, speed impediment, multi-tasking issues and anxiety.

[51]         I do not agree with the defence that Ms. Dube’s earlier medical or employment history establishes that she was “generally” disabled or reluctant to work. Rather, the evidence establishes that work was an important part of Ms. Dube’s active lifestyle. The evidence shows that Ms. Dube was committed to recovery and eager to participate in the workforce.

[52]         Both the medical and lay evidence establish that Ms. Dube has been unable to return to her previous activities and has become socially withdrawn. The only expert who opined that Ms. Dube was not disabled as a result of the accident was Dr. Arthur, who does not have any expertise with respect to cognitive functioning and its impact on Ms. Dube’s ability to do her job. Dr. Teal’s opinion was undermined by its reliance on an inaccurate fact. Accordingly, I conclude that as a result of the accident, Ms. Dube will continue to suffer from cognitive impairment and chronic pain to some degree…

[65]         As noted earlier, Ms. Dube suffered a variety of injuries in the accident including a MTBI. The witnesses painted a fundamentally different picture of Ms. Dube before and after the accident. She will continue to suffer ongoing cognitive problems (including memory issues) that have contributed to her social withdrawal. These symptoms have impacted her significantly. Her friends and family have corroborated this.

[66]         As noted in Stapley, the assessment of non-pecuniary damages depends on the particular circumstances of the individual. I have concluded that the authorities provided by the plaintiff are more useful than the authorities offered by the defendant in assessing the case at bar. This is largely because the types of cognitive impairments that I have found to exist in this case are not particularly evident in the defendant’s authorities. I have considered Ms. Dube’s age as well as the nature of her injuries and her ongoing symptoms. I make specific note of the evident distress she has experienced due to the cognitive impact of her injuries, her impact of that on her life generally and her withdrawal from social activities. I am of the view that an appropriate award for non-pecuniary damages is $160,000.

Debilitating injuries described in mounting lawsuits against alleged van attacker

By Liam Casey

THE CANADIAN PRESS

Traumatic brain injuries, spinal fractures and internal bleeding are among the litany of ailments described in a mounting number of lawsuits against a man accused of killing 10 people and injuring 16 others in a van attack in Toronto last year.

Lawyers involved in the suits against Alek Minassian believe the cases, which the court is working to pull together in one large proceeding, will take years to come to a resolution.

On April 23, 2018, police allege Minassian drove a white Ryder rental van south along Yonge Street in the city’s north end, hopped the curb and deliberately mowed people down.

While Minassian’s criminal case slowly makes its way through the system – his trial on 10 first-degree murder charges and 16 attempted murder charges has been scheduled for February 2020 – the 26-year-old already faces four civil suits, with more expected.

The lawsuits, from the families of one person who died and three who were injured, are seeking millions of dollars from Minassian and Ryder Truck Rental Canada, alleging the devastating injuries and deaths on that day were due to an intentional act by Minassian and negligence on his and the rental company’s part.

The unproven civil suits will be fought in the trenches of insurance law.

“This is going to drag on for a long, long time,” said Gus Triantafillopoulos, who represents the family of Anne Marie D’Amico, a young woman who died that day and whose family filed a $1-million suit in January against Minassian and Ryder.

Triantafillopoulos said if the family receives any money through the civil proceedings it will all be donated to the Anne Marie D’Amico Foundation, which supports women who are victims of violence.

The first suit related to Minassian was filed in November 2018 by Amir Kiumarsi, a chemistry instructor with Ryerson University who is seeking $6 million dollars in damages.

He suffered a traumatic brain injury and several skull fractures, spinal fractures, traumatic internal injuries including a displaced kidney and numerous other injuries throughout his entire body, the claim says.

“These injuries have been accompanied by severe physical pain, suffering and a loss of enjoyment of life,” the claim alleges, noting that his future holds “numerous surgical and medical assessments, treatments and procedures.”

Since Kiumarsi filed his suit, the court is in the process of getting all the cases on one track, documents show.

Another suit was filed in mid-January by Amaresh Tesfamariam and her family, who are seeking $14 million. Tesfamariam has a complete spinal cord injury, multiple spinal fractures, rib fractures and a traumatic brain injury.

She cannot move her body below her neck, cannot breathe without a machine, suffers a total loss of independence and a “profound and permanent loss of her cognitive ability,” according to the claim.

Tesfamariam also has loss of short-term memory, depression, anxiety, a “drastic personality change” and cannot communicate properly with others, and cannot return to her work as a nurse, the claim alleges.

The latest suit was filed last week by Catherine Riddell and her family, alleging the “sustained serious and permanent” injuries the woman suffered are the result of negligence on the part of Minassian and the rental company.

Riddell lost consciousness, suffered a brain injury, hurt her head, neck, shoulders, arms, back, legs and arms. She fractured her spine, her ribs, pelvis, scapula and suffered internal injuries including a collapsed lung, the $3.55 million suit alleges.

She lives with headaches, memory loss, difficulty finding words, dizziness, back and neck pain, loss of mobility, nausea, anxiety, nervousness, insomnia and depression, her claim alleges, noting that she now faces a life filled with therapy, rehabilitation and medical treatment.

“Her enjoyment of life has been permanently lessened and she has been forced to forego numerous activities in which she formerly participated,” the claim reads.

Minassian does not yet have legal representation in the civil matters and has not responded to the claims, according to the documents. His criminal lawyer did not respond to a request for comment.

The lawyers for Ryder, who did not respond to multiple requests for comment, detailed the expected complexities in the litigation in an affadavit filed with the court.

It notes that notice has been given for 12 claims and more are expected. There will be numerous parties in the case from families of the dead to the injured and the various defendants. There will be examinations for all plaintiffs, and testimony would be expected from numerous medical experts.

“It would be safe to assume this matter will require a lengthy trial,” said the affidavit.

Kiumarsi’s lawyer, Darcy Merkur, said there will be a slew of arguments brought forward.

“One interesting question is this: is every different person hurt considered a separate accident?” Merkur said. “It’s a legal question, but also a philosophical one.”

The answer to that question will be important to the issue of potential payments, he explained.

$175,000 Non-Pecuniary Assessment for Chronic Psychological Injuries

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological injuries sustained in a collision.

In the recent case (Anssari v. Alborzpour) the Plaintiff was injured in a 2014 collision.  She sustained various psychological injuries including severe depression, anxiety, and post-traumatic stress symptoms.  These continued to the time of trial and were likely to continue in the future.  In assessing non-pecuniary damages at $175,000 Madam Justice Fleming provided the following reasons:

[95]         In any event, the fact and opinion evidence overwhelmingly establishes that Mrs. Anssari developed severe depression, severe anxiety and symptoms of PTSD due to the accident. It is clear her psychological injuries have resulted in the ongoing and severe symptoms she, her children and most of the expert witnesses described in their evidence. I find therefore the accident caused the following:

–       very low mood and intense feelings of anxiety worsened or triggered by a number of circumstances such as driving, noise, and sirens;

–       nightmares for about one year after the accident;

–       very low energy and very poor motivation;

–       agitation, irritation and anger, as well as intense sadness and emotional numbness;

–       a profound sense of hopelessness and if not a wish to die, a questioning of her ongoing existence;

–       irrational anger toward Mr. Alborzpour for causing the accident that she wants to let go of but cannot;

–       overwhelming feelings of guilt over the impact of her condition on her family;

–       chronic insomnia that prevents her from falling asleep until near dawn and staying asleep for more than a series a short periods ending in the late morning;

–       significant physical pain in her neck shoulders and back, severe headaches and numbness along with other altered sensations in her right arm for approximately two years after the accident; and

–       some ongoing pain in her neck, shoulders and back, headaches and intermittent numbness in her right arm.

[96]         Mrs. Anssari’s severe psychological symptoms have persisted despite treatment including anti-depressant medications, psychological treatment in 2014 and 2017, medication and treatment for her physical symptoms, ongoing support from her family doctor, and some involvement with a treating psychiatrist since early 2018….

[108]     The evidence makes it clear that Mrs. Anssari’s psychological injuries have had a devastating impact on every aspect of her life. Before the accident she was a vibrant, happy, healthy person with a loving marriage and extremely close, positive relationships with both children. A full-time homemaker and a highly involved parent, Mrs. Anssari also enjoyed socializing with friends, going out and travelling with her husband and children, and being physically active. She dreamed of being a grandmother and caring for her grandchildren. Her future was bright.

[109]     Since the accident, her emotional suffering, intense anxiety, and severely disrupted sleep, along with an almost complete loss of motivation, next to no energy and a deep sense of hopelessness have essentially taken all of that away. For the first year she was also plagued by nightmares of the accident. She still experiences flashbacks. I have accepted her psychological injuries exacerbated her physical pain which, although much better, has not resolved.

[110]     For the most part Mrs. Anssari spends her days and nights on the living room couch, interacting very little with the world around her, including her family. Her inability to take part in or find any joy in Sahar’s wedding preparations and the wedding itself would have been unimaginable before the accident. The same is true of her response to Rosha. Rather than fulfilling her dream of being an involved grandmother and caring for her grandchildren, she engages very little with Rosha during their almost daily weekday visits which in turn causes her more suffering. Similarly, Mrs. Anssari remains unable to let go of the anger she has felt toward Mr. Alborzpour since the accident. In response, as Mrs. Anssari put it, he has lost patience with her. The evidence of Saeed and Sahar suggests the marriage is beyond repair, a terrible loss for Mrs. Anssari given its strength before the accident and how firmly rooted her identity has been in her role as a wife and mother.

[111]     The effect of Mrs. Anssari’s injuries on her day-to-day functioning is as profound as the impairment of her relationships. I have accepted that her psychological injuries prevent her from engaging in any meaningful housework or cooking. They also significantly interfere with her ability to drive safely, a blow to her independence. She even struggles to engage in basic self-care.

[112]     Unhappy with what has become of her, Mrs. Anssari is, as I have said, guilt ridden about the effect of her condition on her family. Fortunately she wants to get better and is willing to undergo further treatment, despite the ineffectiveness of medication and psychological interventions thus far. Although a complete recovery is not a realistic possibility, a new medication regime and, failing that, ECT may very well result in substantial improvement over time.

[113]      Similar cases are of some assistance in assessing an award for non-pecuniary damages. No other case however will ever involve the exact same circumstances and each plaintiff is unique: Hans v. Volvo Truck North America Inc., 2016 BCSC 1155, at para. 525. I have considered the cases relied upon by the parties. The most similar is Hans where $265,000 was awarded in non-pecuniary damages seven years after the accident. The plaintiff’s psychological injuries, significant PTSD and major depressive disorder, were however even more serious than Mrs. Anssari’s and there was little prospect his symptoms would improve. He suffered from suicidal ideation, had attempted suicide three times, and been hospitalized for extended periods. The trial judge accepted the plaintiff would remain at risk of death by suicide. Given his PTSD, the plaintiff was also found to be at increased risk of developing another psychiatric disorder.

[114]     In all of the circumstances and having considered the factors enumerated in Stapley, I conclude $175,000 is an appropriate award for Mrs. Anssari’s pain and suffering. The award includes compensation for the non-pecuniary loss associated with her intended role as a caregiver to her grandchildren and her future loss of housekeeping capacity, both of which are discussed below but also takes into account the chance that with the medication regime or failing that ECT, her psychological condition will improve substantially, balanced against the risk of further deterioration.

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