The Whetung v. West Fraser Real Estate Holdings Ltd. court decision was released by the British Columbia Supreme Court in New Westminster on August 24, 2007.

On May 31, 2001, Jessica Whetung visited the Revy Store in White Rock, British Columbia along with her mother and sister. Suddenly, while standing near the garden supplies section of the store, the heavy wooden arm of the lumbar yard gate fell down on top of her head. Another store customer was struck across the shoulder.

As a result of the accident, Ms. Whetung, then a 25 year old ski instructor, developed dystonia, a crippling neurological disorder characterized by involuntary contractions of many of the major muscle groups in her body.

Ms. Whetung hired a Vancouver personal injury firm and sued the Revy store for negligence and the injuries she received.

At trial, the defendant admitted negligence with respect to Ms. Whetung being struck by the gate but argued that she was also negligent in not taking reasonable steps to assure her own safety. The defendant argued that Ms. Whetung should have recognized the danger presented by the gate arm.

After reviewing all the evidence, the court found that the defendant was 100% liable for the accident. The working arm was activated by a store employee using a garage door type of remote controller. The employee failed to give a warning that the gate arm would be swinging down. Further, the store yard manager gave evidence of twice being hit by the gate in the past. As a result, the court found that the gate arm was a known hazard and put customers at risk.

The court noted that Ms. Whetung’s post accident condition rendered her totally disabled from employment and unable to perform many of the activities of daily living. She was now dependent on her mother who had to leave her employment to care for her daughter. As a result of the dystonia, she has difficulty seeing where she is going, and unable to use her right hand.

The court awarded Ms. Whetung the following damages,

• $2,837,686 – Cost of future care
• $250,000 – General damages for pain and suffering
• $67,500 – in trust claim for Ms. Whetung’s mother who provided care
• $25,000 – Past loss of earnings
• $513,318 – Future loss of earnings

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