In this pedestrain injury case( Zawadzki v. Calimos, 2011 BCSC 45) the claimant was hit by a U-Haul truck while  he was walking north on 20th Street in New Westminster, British Columbia . the driver denied being at fault throughout the trial. At the beginning of closing submissions, liability was admitted but the driver tried to argue that the pedestrian was partly at fault.  the Claimant  asserted  that he  suffered  severe injury to his elbow, lower back and headache pain as a result of the accident.  He also claimed the quality of his sleep had markedly deteriorated, that he is depressed, anxious and that he abused alcohol because of his injuries.  A doctor hired by the driver confirmed that injury claimant had a “genetic predisposition”, by virtue of the alcoholism of his parents, to alcohol abuse.
With respect to the fault of the pedestrian the driver argued  that the pedestrian, in crossing 20th Street diagonally and in walking along 20th Street, parallel to the parked cars rather than on the sidewalk, contributed to the events which brought about his injury.
Section 182 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides:

Pedestrian walking along highway

182(1) If there is a sidewalk that is reasonably passable on either or both sides of a highway, a pedestrian must not walk on a roadway.

(2) If there is no sidewalk, a pedestrian walking along or on a highway must walk only on the extreme left side of the roadway or the shoulder of the highway, facing traffic approaching from the opposite direction.

The judge found the pedestrian had  acted as a person of ordinary prudence  and was not at fault. The day of the accident was clear and dry and the claimant looked both ways before he crossed 20th Street. He crossed the street and he then intended to walk parallel to two parked cars, in a lane of unusual width, to access his van which was reasonable.
Regarding the claimant’s alcohol abuse the court found  that the claimant did not drink in a sustained or excessive manner before the accident but rather he drank socially and he consistently functioned at a very high level. He was attentive to his family, he did not miss work and he engaged on an ongoing basis in various activities. After a lengthy review of some common law principles of legal causation the court found that the claimant’s alcohol abuse was caused by the accident and that such alcohol abuse was reasonably foreseeable.
The court however also found that the claimant failed to mitigate and he had not sought professional assistance for his sleep and mood disorders. Most notably, he has failed to take any active steps to address his alcohol addiction although he had been advised to address this difficulty on numerous occasions.  The court re-affirmed the proper approach for assessing  failure to mitigate set out  in Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 170:

“As Blair J.A. points out, support is also to be found for the majority approach in a number of Australian cases, notably Newell v. Lucas, [1964-65] N.S.W.R. 1597. In Plenty v. Argus, [[1975] W.A.R. 155], Burt J. seems to have adopted it in the following obiter statement at p. 159:

And if a finding is made that a plaintiff in the face of an uncertain prognosis acted unreasonably in not submitting himself to surgery or treatment, then it would seem that his damages should be assessed having regard to his condition as it is, discounted by the evaluation of the lost chance, or as one would if the assessment were made in advance of the carrying out of the advised treatment.”

The claimant was therefore awarded the following:

Pain and suffering $144,000.00 (reduced from $180,000)
Past Wage Loss 206,312.00
Future Wage Loss 320,000.00
Cost of Future Care 130,690.00
Special Damages 18,035.99
Total: $819,037.99

Posted by Mr. Renn A. Holness


Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment