The injury claimant suffered a spinal cord injury and a traumatic brain injury when a train owned by the Canadian National Railway, CNR, struck her car as she crossed the railway tracks on Smith Crescent close to Glover Road in Langley, BC.
The judge found CNR failed to maintain adequate sightlines at the Crossing by allowing an overgrowth of vegetation, mainly blackberry bushes. The claimant accepted some responsibility for failing to stop but argued she should only be found 10% contributorily negligent. The judge found the claimant 40% at fault for her own injury.
In finding the train company 60% at fault for the spinal cord and other severe injuries the judge had this to say,
 Liability is apportioned based on the degree to which each person was at fault, not the degree to which each person’s fault caused the damage. Fault means blameworthiness: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219 (C.A.), Bradley v. Bath, 2010 BCCA 10 at para. 24….
 …the CNR was more blameworthy with respect to three important factors. I conclude therefore the CNR’s degree of fault is greater than Ms. H’s bearing in mind that causation plays no role in the analysis. I apportion liability 60% to the CPR and 40% to Ms. H.(Huang v. Canadian National Railway Company,2018 BCSC 1235)
After about 7 weeks of trial the claimant was awarded over $2.4 million in damages. The claimant sought an award at the upper limit for her pain and suffering, estimated at $373,500, based on the profound and devastating consequences of her injuries. The train owners accepted $225,000 as appropriate, arguing she has made significant improvements in her functioning and symptoms and there may be further improvements. The judge awarded $330,000 for pain, suffering and loss of enjoyment of life.
It was clear to the court the impact of the multiple injuries, including spinal cord injury, brain injury, depression, and significant fatigue were profound making an award close to the upper limit reasonable and fair.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.