In this personal injury appeal (McGuigan Estate v. Pevach,2024 BCCA 106) the pedestrian was struck in a crosswalk and severely injured at the intersection of 30th Avenue and 39A Street in Vernon. The driver was found 100% at fault and the claimant was awarded $1.7 million. The driver appealed claiming that the judge had failed, amongst other things, to take into account that the pedestrian was intoxicated.
Liability
The trial court held the driver was solely liable based on evidence presented, despite arguments regarding contributory negligence due to the pedestrians intoxication and attire. The appellate court affirmed the trial judge’s decision on liability, emphasizing the motorist’s responsibility to watch for pedestrians. As the Court of Appeal stated:
[53] In Perez-Alarcon, Justice Griffin emphasized the onus was on the defendant driver to prove on a balance of probabilities that the pedestrian plaintiff he struck failed to pay sufficient attention or take reasonable steps for his own safety to establish contributory negligence: at paras. 76–77. Based on the evidence in that case, she found the defendant had failed to establish contributory negligence because he did not prove the plaintiff should have seen his approaching vehicle and avoided the collision, but failed to do so as a result of his intoxication and insufficient attention. Although her liability analysis was considerably more detailed than that of the judge in this case, the issues for determination in both cases were strikingly similar in several respects. These included the question of whether a pedestrian plaintiff with the right of way was contributorily negligent based on their state of intoxication and alleged failure to pay sufficient attention to an approaching vehicle.
Damages
The trial court awarded substantial damages for future care costs based on the pedestrians severe injuries and ongoing care requirements. The appellant argued that the awards were excessive and not justified medically. The appellate court first addressed whether the trial judge’s awards for future care costs, including community support and taxi services, were justified. The court found that these costs were medically necessary and reasonable based on the evidence presented. The trial judge was deemed to have made an appropriate assessment of the ongoing needs due to the severity of her injuries sustained in the accident.
However the court of appeal agreed that the trial judge failed to account for the real and substantial possibility that the pedestrian’s pre-existing conditions might have led to similar future care costs irrespective of the accident. This oversight was significant because it potentially inflated the award amount by not considering the likelihood that some of her post-accident care needs could align with what she might have required due to her existing health issues. The Court of Appeal applied specific contingency deductions to the awards for future care:
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- 15% Reduction for Extended Residential Care: This reduction acknowledged that while the pedestrian’s post-accident needs were extensive, there was a possibility that her pre-existing conditions might have necessitated some level of extended care eventually, regardless of the accident.
- 20% Reduction for Community Support and Taxi Services: This larger reduction reflected a moderate likelihood that the pedestrian would have needed some form of support due to her ongoing mental health issues and other conditions, even if the accident had not occurred.
The appeal was allowed in part, leading to a reduction in the awarded damages for future care. This decision underscored the importance of considering both the direct consequences of the accident and the pre-existing health status of the plaintiff in determining reasonable and necessary future care awards.
This case reinforces the responsibilities of drivers to be vigilant, especially in areas where pedestrians are likely to be present, and reflects on the considerations involved in determining appropriate damages for future care.