On April 17, 1998, grade seven student Devon Hussack was playing in a field hockey game as part of his gym class.  Prior to the game, he had no field hockey experience. A fellow student approached the goal and swung her stick backwards in order to shoot. Unfortunately, Mr. Hussack was running behind her in an attempt to check from behind and was struck by her stick on the face, just above the bridge of the nose.  He fell to the ground moaning and groaning and was subsequently taken to the hospital.

Mr. Hussack was diagnosed with a mild concussion, lacerations, and extensive soft tissue bruising and swelling of the bridge of the nose, forehead, and both eyes. Over the next few years his symptoms did not resolve and in fact he developed a serious somatoform disorder. His symptoms included ongoing migraine headaches, visual distortions, sore eyes, tremors throughout his entire body, generalized muscle aches, and episodes of severe chest pain.

Mr. Hussack retained Vancouver personal injury lawyers and sued the school board of negligence, arguing that the gym teacher had exposed him to danger by allowing him to participate in field hockey game without sufficient coaching.

At trial, the court referred a four-part test in determining whether a teacher meets the standard of care: (a) whether the activity was suitable to the age and mental and physical condition of the student; (b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger; (c) whether the equipment was adequate and suitably arranged; and (d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.

After considering all the evidence, the court found that the gym teacher had failed to ensure that Mr. Hussack had been progressively taught the skills of field hockey prior to the game.  Mr. Hussack had missed all the field hockey class units prior to the accident  and thus court found that the teacher should have prevented him from playing.  The court also rejected the defence argument that Mr. Hussack was himself partially responsible for his own accident by placing himself in a dangerous position.   The Judge commented, “My sense of what occurred here was an unfortunate confusion of appropriate hockey checking techniques with inappropriate field hockey tackling techniques—a failure for which Devon should not be held responsible.”

The court also ruled that on a balance of probabilities, the blow to head suffered by Mr. Hussack led to his somatoform disorder. The Judge commented, “I find that but for the head injury and the original resulting symptoms as well as the others which followed, the somatoform disorder would not have developed.”

As a result, Mr. Hussack was awarded the following damages:

• $125,000 – damages for pain and suffering
• $200,000 –  past loss of income (reduced to $150,000 by the Court of Appeal)
• $1,000,000 – future income loss (reduced to $785,000 by the Court of Appeal)
• $40,000 – future care costs

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On October 14, 2000, 61 year old dairy farmer Wayne Forsberg went to the emergency room in Leduc Community Hospital as a result of feeling ill and experiencing pain in his hands. Upon arrival, the nurse immediately identified Mr. Forsberg’s condition as urgent and contacted the attending doctor, who examined him and ordered tests. He had contracted Meningitis and required antibiotics to counter the infection.

The attending doctor did not order treatment and made two unsuccessful attempts at a lumbar puncture. Three hours after his arrival, the doctor arranged for Mr. Forsberg to be transferred to Royal Alexandra Hospital in Edmonton for treatment. However, by this time his infection had spread and he was sedated into a medically induced coma. Both Mr. Forsberg’s legs and his right arm were amputated, as well as part of his left hand. He regained consciousness from his coma one month later.

While Mr. Forsberg learned to use prosthetics, his functioning was severely impaired and required medication to avoid blood clots. He was no longer able to participate in the operation of his dairy farm and sold his herd.

Mr. Forsberg hired Alberta medical malpractice lawyers and sued the Leduc Hospital attending doctor for negligent treatment.

After considering all the evidence and testimony, the court concluded that the doctor had correctly decided to transfer Mr. Forsberg to another hospital with an intensive care unit. However, the court found he was negligent when he failed to transfer Mr. Forsberg using the critical care line, an efficient inter-hospital transfer service which could have resulted in Mr. Forsberg receiving faster treatment.  The court also found that the doctor was negligent for failing to order blood samples and failing to ensure Mr. Forsberg received intravenous brood-spectrum antibiotics.

At trial, the defendant’s lawyer argued that even if the doctor had taken every appropriate step in a timely manner, the Meningitis would still have spread to such a degree that the amputations would have been necessary. In other words, they argued that no medical intervention could have ever prevented the consequences experienced by Mr. Forsberg.

The court agreed that the failure to use the critical care line did not cause or contribute to Mr. Forsberg’s condition. However, the court found that Mr. Forsberg would have suffered less tissue death and not required amputation to his hands had the antibiotic treatment not been negligently delayed. Thus, the court awarded the following damages:

• $270,000 – General Damages for Pain and Suffering
• $239,771 – Past cost of care
• $25,000 – Lost of consortium
• $1,037,957 – Past income loss

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The Mielke v. Harbour Ridge Apartment Suites Ltd. court decision was released by the Supreme Court of Nova Scotia in Halifax on August 15, 2011.

On the night of December 23, 2000, Christopher Mielke had finished his shift as a waiter at the Keg Restaurant in Halifax and left to meet some co-workers at a cigar bar. As he exited the restaurant, he noticed his two co-workers were about 100 yards ahead of him and started to “fast walk” in order to catch up.  As he was passing by an apartment building under construction he suddenly tripped on some debris strewn on the sidewalk and ruptured his Achilles tendon. He went to Queen Elizabeth hospital emergency and underwent surgery several days later.

Mr. Mielke hired Halifax personal injury lawyers and sued the apartment complex for failing to keep their property free of unsafe conditions.

At trial, the defendant denied liability for the trip and fall accident, arguing that Mr. Mielke could have avoided the accident by taking reasonable care. They pointed out several references in the hospital records to Mr. Mielke “jogging” and “running”. They also pointed out that Mr. Mielke had consumed one or two beers before leaving the restaurant.

The developer of the property testified regarding general policies and programs in place to ensure that work sites were kept clean. However, he was unable to produce documentation specific to this particular accident site and did not produce any logs or checklists regarding when the sidewalk would have been inspected or cleaned.

After considering the testimony of all the witnesses, the court concluded that there was a significant amount of construction debris left on the sidewalk area, and that there were no remarkable obstruction barriers or dangers signs. Factoring in the dim lighting and the location of the debris on the sidewalk, the debris constituted a danger to pedestrians The court found Mr. Mielke to be a very credible witness and accepted that he was only “fast-walking” and not running. The evidence also failed to establish that Mr. Mielke was in any manner intoxicated at the time of his trip and fall.

The defendant was found to be wholly liable for Mr. Mielke’s injuries and the court awarded him the following damages:

• $35,000  – General Damages for pain and suffering
• $7740 – Loss of income
• $8221.64 – pre-judgment interest

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On April 5, 2003 Craig Heyward was driving in Burnside when he was suddenly T-boned at the driver’s side door by another vehicle. The impact caused him to strike his head against the window and he was subsequently disoriented and nauseous.   In the next few days, Mr. Heyward was stiff and sore, had difficulty moving his neck and was experiencing a significant amount of pain.  He would subsequently suffer from recurrent migraine headaches. In 2006, he underwent an MRI of the brain, which revealed some residual scarring to the inferior frontal lobe.

Mr. Heyward hired Halifax car accident lawyers and sued the other driver for the injuries that he suffered. In particular, he claimed that he had suffered a brain injury as a result of the accident.

At trial, the defendant admitted liability but denied responsibility for a brain injury. Rather, the defendant’s lawyers argued that Mr. Heywards’s traumatic brain injury was the result of an incident in 1991 when as a teenager Mr. Heyward was assaulted in downtown Halifax and remained unconscious on a sidewalk for approximately one-half hour. Medical records reveal that four days later he still could not remember the event.

Mr. Heyward testified that following the accident he had memory problems and found himself to be moody, irritable, short of temper, and chronically tired. He also said that he had difficulty meeting performing work tasks and would miss project time lines.

After considering the testimony of medical experts, the court concluded that on a balance of probabilities Mr. Heyward had not suffered a brain injury as a result of this accident. Rather, the assault was deemed to be the most likely explanation for the scar tissue shown in his 2006 MRI. However, the court did accept that Mr. Hayward suffered soft tissue injuries that developed into a chronic pain problem as a result of the accident.

The court awarded Mr. Heyward the following damages:

• $120,000 – General damages for pain and suffering
• $10,000 – Costs of future care

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In the late afternoon of November 3, 2006, Michelle Rintoul, a 27 year-old legal secretary, was walking across an intersection in downtown Vancouver. Suddenly, she was struck by a car that was turning left and fell to the ground unconscious. The driver of the vehicle had failed to see that Ms. Rintoul was crossing the intersection.

Ms. Rintoul has a rare medical condition in which she was born without any upper limbs. Having no arms, she was unable to break her fall and struck her head directly on the pavement. She was taken to the hospital where she stayed overnight. She suffered a brief period of post-traumatic or anterograde amnesia, indicative of a brain injury, and a CT study showed contusions to the brain.

Ms. Rintoul was off work for two months until January 2007. During that time she suffered from constant neck and upper back pain and daily headaches.  In the years following the accident, she continued to have problems with her cognitive functions, including poor memory and concentration, distractibility, and  fatigue.

Ms. Rintoul hired B.C. car accident lawyers and sued the driver for the injuries that she suffered.

At trial the driver admitted responsibility for the accident that Ms. Rintoul was also partly responsible as she could have taken steps to avoid the accident.

The court noted the common law principle that even if a pedestrian has the right of way, the pedestrian has a duty to use care for their own safety. A pedestrian who steps into the path of a known danger will generally be held contributorily negligent. However, the burden is on the driver to prove that the pedestrian could have reasonably acted to avoid injury.

After considering the testimony of the driver and witnesses to the accident, the court found that Ms. Rintoul did not have sufficient time to perceive the risk, react, and avoid the accident. The court noted that as a pedestrian, Ms. Rintoul did not have an obligation to make eye contact with oncoming drivers to make sure she had been seen. Thus, the court found that the driver to be 100% at fault and negligent for the accident.

The court awarded Ms. Rintoul the following damages:

• $175,000 – damages for pain and suffering
• $18,361 – past income lost
• $750,000 – loss of future earning capacity
• $7500 – cost of future care
• $5817 – special damages

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On August 5, 2004, Heather Williams was driving south on 156 Street in Edmonton when she T-boned another driver who had failed to yield at a stop sign. She was travelling 65 kilometres per hour and the force of the impact caused the air bag to deploy striking Ms. Williams in the face.  When she exited the vehicle, she noticed blood was dripping from her sock. She was taken to Royal Alexandra Hospital where she was diagnosed with a severe fracture of her right heel bone which extended into the subtalar joint. She underwent surgery to have her right heel bone reconstructed.

Ms. Williams hired Edmonton personal injury lawyers and sued the other driver for injuries resulting from the accident. She claimed that she had developed both fibromyalgia and post-traumatic arthritis in the subtalar joint. She also sued for loss of income as a result of being unable to continue her occupation as a hairdresser.

At trial, the defendant admitted liability for the accident but disputed the extent of Ms. Williams’ injuries. They argued that she was exaggerating her injuries and was not a credible witness. In particular, they relied upon video surveillance conducted on Ms. Williams which they claimed proved she was malingerer.

The court’s view of the video surveillance was markedly different. It showed Ms. Williams limping and her condition deteriorating over a period of time. The court ultimately concluded that Ms. Williams was a credible witness and that her evidence was generally reliable.

After considering all the evidence and testimony, the court found that Ms. Williams did suffer from chronic pain which impeded her ability to function. Ms. Williams could no longer stand for more than a short period of time or walk over longer distances.  The court also concluded that Ms. Williams has developed both osteoarthritis and fibromyalgia as a result of the accident.

The court awarded Ms. Williams the following damages:

• $145,000 – general damages for pain and suffering
• $70,885 – past loss of income
• $306,061 – loss of future earnings

Ms. Williams also received additional money for future care costs, housekeeping, and special damages.

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In the summer of 2006, K.T. was a 22 year-old university student who worked as a bartender at a nightclub in the City of Hamilton. She was working on the night of July 20, 2006 when in the late closing hours the manager of the night club cornered her outside the back entrance and sexually molested her. K.T. managed to escape back inside the club where she told a co-worker what had happened. She also informed her parents and her father called the police.  The night club manager was charged with sexual assault and he pled guilty in September 2006.

K.T. hired a Hamilton personal injury lawyer and sued both the manager and the night club for damages arising from the sexual assault.

K.T.’s victim impact statement was shown at trial and she spoke about suffering from panic attacks, nightmares and having become “a completely different person” since the assault. She also testified that for a long time after the attack she was afraid to go outside her home and that her relationships with her friends and family had been detrimentally affected. The court accepted expert evidence presented at trial that K.T. had suffered from post-traumatic psychiatric injury and would require ongoing psychiatric treatment as a result of the assault.

The night club manager was found to be liable for breach of fiduciary duty and battery.  In addition, the night club was found to be vicariously liable for the manager’s conduct. K.T. was awarded the following damages for which both defendants were jointly and severally held to be liable:

• $125,000.00 – Damages for pain and suffering as well as aggravated damages

• $25,000.00 – Punitive damages

• $75,000.00 – Loss of earning capacity

• $26,650.00 – Future therapy costs

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On September 17, 2004, auto mechanic Teddy Zawadzki crossed the street from his auto shop to bring in a parked TransLink van needing service. He looked both ways before crossing the street. When he approached the van, he was suddenly struck from behind by a U-Haul truck and thrown forward about two car lengths.

Mr. Zawadzki was taken to the Royal Columbian Hospital by ambulance and held there for several days. He suffered a intra-articular fracture at the elbow joint that required three surgical procedures to treat. He experience continued elbow and lower back pain as well as developing chronic headaches, depression, and undergoing personal changes. He also developed a drinking problem. Mr. Zawadzki did not return to work for over a year and half after the accident because of his injuries.

The driver of the U-Haul truck admitted that he may have dozed off at the wheel and was charged under section 144(1)(a) of the Motor Vehicle Act with driving without due care and attention.

Mr. Zawadzki hired Vancouver personal injury lawyers and sued the driver of the U-Haul truck for injuries arising out of his accident.

At trial, the lawyers for the defendant argued that Mr. Zawadzki had overstated his pain and restrictions with respect to his elbow injury. After considering the testimony of various experts, the court rejected this argument and concluded that Mr. Zawadzki  suffered from significant ongoing pain, from a permanent loss of range of motion, from occasional locking of his elbow and from a permanent loss of function in the use of his right elbow. The Court also found that Mr. Zawadzki suffered from significant mood disorders as a result of the accident and was drinking alcohol excessively.

In considering damages, the court noted that Mr. Zawadzki’s injuries precluded him in engaging in a number of his pre-accident activities, including golf, playing music, dirt biking, camping, and boating with friends.  However, the court reduced Mr. Zawadzki’s damages by 20% for failing to pursue proper treatment with respect to his excessive alcohol consumption.

The court awarded Mr. Zawadzki with the following damages:

• $144,000 – damages for pain and suffering
• $206,312 – past wage loss
• $320,000 – future income loss
• $130,690 – cost of future medical care
• $18,035.99 – special damages

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In the evening of May 28, 2005, Ratomir Stevanovic was standing in the roadway waiting with a friend to get picked up by Stevan Petrovic. The three young friends had plans to go out for dinner. Mr. Stevanovic saw Mr. Petrovic’s vehicle approaching from a block away and turned to speak to his other friend. Suddenly, he was struck by Mr. Petrovic’s vehicle, thrown on the hood of the car and then onto the ground.

Mr. Stevanovic suffered very serious injuries, including patellar dislocation, impacted fracture of the lateral femoral condyle, tibual-plateau fracture, and a bucket handle tear in the anterior portion of the lateral meniscus. The damage to his right knee required four surgeries and it was possible that Mr. Stevanovic would require a total knee replacement in the future. He also suffered a closed head injury including a laceration, nasal fracture, and probably mild traumatic brain injury. He fractured the proximal fibula of the right leg and also suffered a shoulder injury which required surgery.

Mr. Stevanovic hired personal injury lawyers in Vancouver and sued his friend Mr. Petrovic for the catastrophic injuries he experienced.

At trial, Mr. Petrovic argued that he had no intention to hit his friend but was only trying to drive around him. His lawyers argued that Mr. Stevanovic showed complete disregard for his own safety by standing in the street.  They argued that had Mr. Stevanovic been paying attention instead of turning to speak to his other friend, he would have easily avoided the accident.

After considering all the evidence, the court found that Mr. Petrovic was “showing off” and “clowning around” for his friends by trying to manoeuvre his vehicle in a risky and dangerous manner. Thus, while the court agreed that Mr. Petrovic had no intention to hit his friend, he was negligent by his reckless manoeuvring and approach of Mr. Stevanovic with excessive speed.  The court also found that while ordinarily a person standing in a roadway would be negligent, here Mr. Stevanovic had seen Mr. Petrovic and could not have reasonably expected that his friend would drive up to him at 30 kilometres per hour and make a sudden turning manoeuvre. Thus, Mr. Petrovic was found to be 100% responsible for the accident.

The court awarded Mr. Stevanovic the following damages:

• $155,000 – General Damages for Pain and Suffering
• $600,000 – Loss of Future Earning Capacity
• $275,000 – Cost of Future Care
• $125,000 – Past Wage Loss
• $26,000 – Special Damages

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The case of Druet v. Sandman Hotels, Inns & Suites Limited was decided on February 25, 2011 by the British Columbia Supreme Court in Vancouver.

On March 19, 2005, a wet spring night, Catherine Druet, a 52 year old nurse from Washington, was staying at the Sandman Inn while visiting Vancouver, Canada when she slipped and fell when stepping into the lobby of the hotel, injuring her ankle.

Ms. Druet hired Vancouver personal injury lawyers to sue for damages stating that the hotel was liable for her damages arising out of her slip fall.

On the night of the incident, Ms. Druet and her girlfriends came back to the hotel after enjoying dinner outside the hotel. While checking tourist event posters in the hotel, Ms. Druet realized that two of her girlfriends had not entered the hotel and went back outside where they were smoking and then re-entered the hotel. At the entrance was a sandwich board warning sign and a mat. She stepped onto the tile floor wearing wet running shoes, slipped on a wet tile, and was in immediate pain.  Ms. Druet was taken to Vancouver General Hospital by ambulance. She suffered a bimalleolar ankle fracture and had open reduction surgery where the break was fixed with metal screws which were later removed. The next day she returned to Olympia, Washington.

At trial, Ms. Druet complained of ongoing stiffness and lack of range of motion. She had a lack of dorsiflexion and could not invert or evert her right hindfoot well. In June 2008 she had scar tissue surgically debrided and a gastrocnemius recession. By 2009 Ms. Druet’s condition was stabilized, but she had stiffness and arthrofibrosis of her right ankle, related to her bimalleolar ankle fracture. Even though she is not at risk for future injuries, she has very limited movement.

The court noted that rain and wet weather is commonplace in Vancouver, and that on a Saturday night people coming in and out of the rain at a hotel entrance was also commonplace. After considering all the evidence, the court concluded that the hotel floor was unacceptably slippery when wet or when walked on with wet shoes and that the combination of this slipperiness and the moisture on the soles of Ms. Druet’s shoes caused her accident. The court found that despite having a mat and a warning sign, the hotel did not have an adequate monitoring system, as demonstrated by the witnesses and a lack of scheduled maintenance.

However, the court also found that Ms. Druet should have taken reasonable care when stepping inside with wet shoes and that this failure contributed to her fall and resulting ankle injury. She was found to be 50% responsible for her the accident.  She was thus awarded 50% of the following damage award:

• Non-Pecuniary Damages   $55,000.00
• Loss of Income                     $10,320.00
• Cost of Future Care              $3000.00
• Special Damages (US)       $9,786.53
• Special Damages (CAD)    $446.31

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