$110,000 Non Pecuniary Assessment For Chronic Pain and Major Depressive Disorder

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in three separate collisions.

In today’s case (Parhar v. Clarke) the Plaintiff was injured in three collisions that the Defendants accepted blame for.  She suffered chronic physical and psychological injuries as a result including thoracic outlet syndrome, chronic pain,  major depression and anxiety.  Her prognosis for further improvement was guarded.  In assessing non-pecuniary damages at $110,000 Mr. Justice Pearlman provided the following reasons:

[215]     Ms. Parhar was 27 years old at the time of the first accident and 35 at the time of trial.

[216]     The injuries she suffered in the accidents include injuries to the muscles of her neck, shoulder girdle and back with attendant muscle spasm, low back pain, thoracic outlet syndrome, persistent headaches, TMJ pain and dysfunction and soft tissue injuries to her knees and right hip.

[217]     In addition, as a result of the defendants’ negligence, the plaintiff sustained a chronic pain disorder, a major depressive disorder, a generalized anxiety disorder and PTSD.

[218]     Although there has been some improvement in the plaintiff’s condition, Ms. Parhar’s prognosis is guarded in light of the persistence of her symptoms of pain and her psychological conditions.

[219]     Further psychological counselling would assist Ms. Parhar in coping with chronic pain and managing the functions of daily living. Exercise and conditioning will probably produce further improvements to her symptoms of neck, shoulder and back pain, and may also alleviate her headaches. However, after eight years of chronic pain, it is unlikely the plaintiff will make a full recovery and probable that she will experience flares of her back and neck pain, anxiety and depressive moods indefinitely.

[227]     Taking into account the Stapley v. Hejslet factors, all of the authorities cited by counsel, the risk that the plaintiff would have suffered a recurrence of depression in any event of the accidents, and all of Ms. Parhar’s particular circumstances, I would assess her damages for pain and suffering and loss of amenities and enjoyment of life in the amount of $110,000…

Court Dismisses Injury Claim in “Slow-Moving Parking Lot Accident”

I have spent much time documenting judicial treatment of the so-called ‘low velocity impact’ defence.  In short, courts routinely accept motorists can be injured in low velocity collisions.  Despite this, courts occasionally dismiss an injury claim involving modest forces.  Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In today’s case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.

The Plaintiff alleged injury.  The Court rejected this noting that “ I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury“.

In dismissing her injury claim Mr. Justice Brown provided the following reasons:

[53]         I will now discuss the evidence and state my findings:

1.       The Chevrolet was stationary at impact.

2.       The defendant, Mr. Raveendran, started the Honda. He took his foot off the brake. The tires slowly completed their circumference, two to three turns of its tires, before the right side of the Honda contacted the left driver-side door of the Chevrolet.

3.       The vehicles were at a slight angle on impact.

4.       The point of impact was not bumper to bumper. There is no indication the solid substructures of the vehicles were involved. The visible damage was not deeply intrusive into the bodies of the vehicles; a fairly shallow dent of the surface of the driver’s door of the Chevrolet and some surface scraping of the right rear panel and leading edge of the bumper on the Honda is all that is noteworthy.

5.       The plaintiff relied on the fact that the cost of repairing the Honda was $1,200 and the Chevrolet, written off, $1,500. Considering the cost of vehicle repairs generally, these figures do not denote significant impacts, rather, more likely, in my opinion, the costs of materials and labour for prepping, taping, sanding, painting, et cetera. There is no indication of parts replacement or significant structural damage requiring repair.

6.       There is no evidence either vehicle was moved from its path or static position, or moved about by the impact.

7.       The plaintiff complained only of a jolt, the nature of which she had difficulty explaining, but she denied her body came into contact with the interior of the car or that she was moved about.

8.       The video surveillance segments, viewed in congress with the photographs of the vehicle damages, which the court viewed in the range of 10 times, convey a strong impression of a very minor impact, most unlikely to cause injuries, let alone ones requiring a recovery period of three to four years.

9.       The plaintiff had recovered from the injuries related to her previous accident.

10.     The plaintiff reported immediate onset of symptoms, but instead of reporting to Dr. Kaler’s office about 100 feet away, or to the hospital, drove to the ICBC Claim Centre to report the Accident.

11.     The plaintiff submits the fact she attended physiotherapy sessions after the birth of her child argues against invented symptoms. But as I mentioned earlier, there is no evidence showing for what reasons she attended the clinics, the nature of the treatments, the symptoms reported or observations made. Dr. Kaler had clinically noted concerns of morbid obesity; and, as the plaintiff granted, giving birth to a child can cause physical problems. I cannot find a link between the need for physiotherapy and the alleged trauma.

12.     As for depression, Dr. Kaler’s evidence shows the plaintiff earlier had been concerned about becoming pregnant again. The basis for linking this minor accident to alleged depression, say, stemming from a chronic pain syndrome, is not present. There is no diagnosis of chronic pain, for example, to generate a logical medical link between physical trauma and depression usually seen the cases.

13.     It is not plausible, and there is no persuasive medical legal evidence to show, that it would take the plaintiff three years to recover from trauma allegedly caused by the very modest forces involved in this parking accident.

[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[56]         In Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:

[18]      I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

[19]      An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.

Street Racer Found Partly Liable for Other Vehicles Fatal Crash

Interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a street racer partly liable for the death of a passenger in another vehicle that he did not collide with.

In today’s case (Suran v. Auckland) Cadillac and a Chrysler 300 were involved in a street race. Police subsequently blocked off the road and the driver of the Cadillac was apprehended The driver of the Chrysler backed up and drove around the road block and “proceeded down a steep embankment and dropped over a retaining wall, before finally coming to rest at the bottom of a ravine.”. A passenger in the vehicle died when”he was unable to extricate himself from the vehicle when it caught fire. His body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground.”

The passenger’s family sued and both motorists were found partly to blame with the passenger himself being faulted with 25% contributory negligence. In holding the driver of the Cadillac partly at fault for the death even though he was in police custody at the time Madam Justice Burke provided the following reasons:

[195] I conclude Mr. Marwaha in the Cadillac and Mr. Auluck in the Chrysler 300 were engaged in a common (unlawful) course of action that ultimately precipitated the catastrophic accident and death of Mr. Suran. It was reasonably foreseeable, as argued by Ms. Suran, that participation by Mr. Marwaha in a street race at high speed on a busy street would attract police attention and action, which it did. It was also reasonably foreseeable that Mr. Auluck would flee the police as he did, based on his erratic and dangerous behaviour throughout the evening.

[196] There is, therefore, sufficient proximity and foreseeability for Mr. Marwaha to be found partially liable for the accident. As he was indeed stopped by the police and could no longer participate in the race, I conclude Mr. Marwaha’s culpability for the accident lies at 10%.

Uninsured, Self Represented Litigant Learns that Perjury is a Poor Idea

From the vault of how not to represent yourself in court, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, admonishing a self represented litigant for providing the Court with perjured evidence.

In today’s case (Dizon v. Losier) the Defendant rear-ended a vehicle driven by the Plaintiff.  The Defendant was uninsured at the time and represented himself in court.  As part of his defense strategy he called a witness who said he witnessed the collision and the Plaintiff stopped for no reason.  On cross examination it became clear that this witness did not see the collision and colluded to provide this friendly evidence for the Defendant.  The Court went on to find the Defendant largely at fault for the crash, ordering payment of almost $40,000 in damages, costs, and one day of ‘specical costs’ for the perjured evidence. In admonishing this evidence Madam Justice Russell provided the following comments:

[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.

[47]         This turn of events significantly undermined the reliability of the defendant’s evidence.

[84]         … 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.

Pub Found Partly At Fault for Crash Caused by “Visibly Intoxicated” Patron

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a Pub jointly and severally liable for a collision by a patron who was served alcohol to the point of visible intoxication.

In today’s case (Widdows v. Rockwell) the Defendant drove a vehicle and collided with the Plaintiff pedestrian.  The crash caused severe injuries, including brain damage.

At the time the Defendant was “quite literally, falling-down drunk.“.

Prior to the crash the Defendant was drinking at a local pub. In finding the pub jointly and severally liable for over serving a patron and failing to take reasonable steps to ensure he was not driving Mr. Justice Kent provided the following reasons:

[58]         Insofar as Rockwell’s consumption is concerned, I do not accept his evidence that he only consumed 2 1/2 beers at the pub.  Rather, I find as a fact that each of the co-workers bought at least one round of drinks for the other members of the group (and possibly more) and that Rockwell himself bought at least two rounds that included beer (for himself and Sauve), vodka (for Sahanovitch) and Fireball whiskey shooters (for all).  I find as a fact that by the time he left the pub to retrieve his truck, Rockwell had consumed at least five to six drinks, a combination of beer and liquor, and that he was significantly intoxicated by alcohol.  I also have no doubt, and I find as a fact, that the influence of alcohol on Rockwell was exacerbated by both a lack of food in the preceding 12 to 15 hours (and probably longer), and a high level of fatigue caused by extremely long work hours and inadequate sleep over an extended period of time.  His ability to drive safely was significantly impaired when he left the pub.

[59]         I recognize another possible theory of Rockwell’s intoxication is that he drank only two to three beers at the pub and in the two-hour period thereafter, he consumed substantial quantities of beer and/or liquor, whether at home or elsewhere, before the accident occurred.  While it certainly appears that Sahanovitch was an aggressive and irresponsible drinker of a sort who might engage in such behaviour, there is no evidence to support such a characterization of Rockwell.  When one subtracts the amount of time that it would have taken for Rockwell to drive home, this theory would require him to have consumed an enormous amount of alcohol in less than an hour, a proposition which is not consistent with his previous conduct and which, assessed from the perspective of robust logic and common sense, amounts to nothing more than wishful thinking and unfounded speculation on the part of Cambie Malone’s.

[60]         I am also satisfied however, and find as a fact, that Rockwell did indeed consume further alcohol after he departed the pub.  On the balance of probabilities, I find that this occurred at his residence and included consumption of vodka or other liquor in quantities more than Rockwell claims in his evidence.

[61]         It is not necessary to ascribe a precise figure to the amount of alcohol that Rockwell consumed after he left the pub.  It is sufficient to find that he was significantly intoxicated when he left the pub and that he became even more severely intoxicated through the consumption of additional alcohol before the accident happened…

[73]         In this particular case the affidavits from the pub employees all referred to the employees having successfully completed the “Serving It Right”, which is British Columbia’s mandatory “Responsible Beverage Service Program”.  This is a program sponsored by the provincial government and the hospitality industry which offers information about intoxication, as well as guidelines and suggestions for, as the tagline suggests, “responsible beverage service”.  Rather cleverly, none of the employee affidavits expressly disclosed the information and conduct guidelines suggested in the “Serving It Right” program.  Instead, all that was proffered was what was said to be Cambie Malone’s written “Policies and Procedures” which included the following paragraph:

It is your responsibility to ensure patrons do not become intoxicated while in the establishment.  You must refuse entrance and/or service to any person who is apparently under the influence of alcohol or drugs.  Moreover, persons visibly under the influence of drugs or alcohol may not be permitted to remain in the establishment.  You must refuse the person service, have the person removed and see that they depart safely.  Intoxicated persons must NOT be permitted to drive.  It is your duty to ensure that a safe ride home is used.  This is a crucial responsibility of everyone in the alcohol service industry.

[74]         While the standard of care expected of a commercial host will, in large part, be governed by the particular circumstances of any given case, there are several general standards of conduct that could well apply simply as a matter of common sense, including:

·       ensure there are adequate supervision, monitoring and training systems in place so employees know and abide by responsible serving practices;

·       ensure there is a sufficient number of serving staff on duty so that effective monitoring of alcohol consumption by patrons is possible;

·       ensure employees know the signs of intoxication and the various factors that influence intoxication (gender, weight, rate of consumption, food, et cetera);

·       inquire if the patron is driving and identify any “designated driver” for groups of patrons;

·       know how to estimate blood-alcohol concentrations and ensure any driver does not consume more than the appropriate number of drinks to stay on the “right side” of the legal limit;

·       display “tent cards” on tables, posters on walls and washrooms, and menu inserts with easy-to-read charts and information about blood-alcohol concentration;

·       ask apparently-intoxicated patrons if you contact anyone to assist them or if you can get them a taxi and, if necessary, offer to pay for it;

·       display posters advertising free ride-home services available in the neighbourhood; and

·       if the patron rejects alternative options and insists on driving, despite being urged otherwise, contact the police to seek assistance and/or provide whatever information might encourage their intervention.

[75]         None of these things occurred in the present case.  Rather, the pub’s employees utterly failed in abiding by their own employer’s directive that “intoxicated persons (e.g., Rockwell) must not be permitted to drive”.  I have no hesitation in concluding that the employees, and therefore Cambie Malone’s, did not meet the requisite standard of care in the circumstances of this particular case and that their conduct was accordingly negligent.

$217,500 in Damages Ordered Following Suckerpunch Assault

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, ordering the payment of $217,500 in total damages after the Plaintiff was injured in an assault/battery.

In today’s case (Rycroft v. Rego) the Plaintiff alleged he was injured in an altercation with the Defendant.  Although the Court heard differing versions of events the Court concluded the Defendant through an “unexpected” punch to the Plaintiff which began a brief physical scuffle.

In finding the Defendant culpable for the assault and the injuries that arose Mr. Justice Williams made the following findings of fact:

[30]         Based on my examination of all of the evidence, my conclusions with respect to what occurred are as follows.

[31]         In order to investigate the reported damage caused to the bike park, shortly after returning home, the plaintiff entered the yard behind his residence. Immediately before the altercation, while Mr. Rycroft was walking at a moderate pace in the general direction of his own home, Mr. Rego, walking quite briskly, approached him.

[32]         I accept that the plaintiff said words to the effect of “you must be the dad; I do not want kids playing there anymore.”

[33]         I find that, at that point, the defendant struck the side of the plaintiff’s head. The version of events which most sensibly and logically explains the resulting bruise is that, when he was struck, Mr. Rycroft had his head turned to the right. The punch was of significant force and unexpected.

[34]         As a consequence of the blow, the plaintiff went down in a forward direction, ending up on his knees. He had his hands on the ground. The defendant immediately applied some type of headlock to Mr. Rycroft from behind.

[35]         The two men struggled, with Mr. Rego behind and above Mr. Rycroft. No significant blows were landed.

[36]         The physical engagement ended fairly quickly. The defendant let go of the plaintiff and moved away, and the plaintiff got to his feet.

[37]         The defendant said something to the effect of “do you want round two?” or “do you want some more?” The plaintiff responded in the affirmative, I expect probably more reflexively than seriously, but did nothing physically to further engage with the defendant. Instead, the plaintiff reached into his pocket, took out his phone, and called 911.

[38]         At that point, the defendant and his wife left and went home.

[39]         In the course of the altercation, the plaintiff sustained an injury to his left temple area, an injury which is depicted in the photo marked Exhibit 6. I find that bruise was caused by a blow from the defendant.

[40]         It is also reasonable to conclude that Mr. Rycroft sustained minor injuries to his arm, his elbow area, and his hand, likely from going to the ground.

[41]         Finally, I accept that the plaintiff incurred some injury to his knees, also resulting from going to the ground.

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