Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111
August 13, 2010- In this case the injury claimant was a lawyer involved in two accidents, a fall in a Vancouver nightclub, Bar None, and a motor vehicle accident that occurred one year later .
The court found that the claimant suffered a mild traumatic brain injury, headaches and a pain disorder due to the the dance accident when she fell backwards hitting her head. The claimant was in back of a co-worker on the dance floor when, due to intoxication, he fell backwards causing her to fall backwards. The dance accident impacted the claimant’s life profoundly. She continues to have headaches of varying severity and duration. The injury affected her physical and mental abilities and had a significant impact on her relationship with her spouse.
On the other hand the court found that the motor vehicle accident, which happened one year after the dance accident, did not cause or exacerbate the chronic headaches that the injury claimant has experienced since the dance injury. The Court accepted that the motor vehicle accident did cause neck and shoulder soft tissue injuries which in turn may have led to some headaches. However, these headaches were unrelated to the chronic and debilitating headaches the injury claimant experienced since her fall at Bar None.
The injury claimant’s lawyer had however made the car accident the centrepiece of the injury claim. Her claim for the car accident injuries totalled$8.376 million dollars. The claim against the co-worker that injured her at the bar was $285,400. In essence, the theory is that the claimant was on a path of recovery and that the motor vehicle accident denied her that recovery. The court did not accept the claimant’s theory, and specifically rejected the argument that the claimant would have made a full recovery from the injuries she suffered in the dance accident but for the motor vehicle accident.
The judge also pointed out that the Court of Appeal recently held that the claimant’s theory is legally incorrect. The Long v. Thiessenapproach no longer applies to indivisible injuries caused by consecutive tortfeasors: see my blog post on Bradley v. Groves, 2010 BCCA 361. The argument that the car accident was cause of her ongoing condition was probably made for insurance purposes. The driver being sued for the car accident is likely insured with ICBC so the policy limit maybe in the millions whereas the drunk co-worker at the Bar likely has little or no insurance. There also appears to have been an out of court agreement that the co-workers’ liability be capped at a certain undisclosed amount.
Having found that the claimant would not have completely recovered from the dance accident even if the motor vehicle accident had not occurred, in light of Bradley, the essential question to address is whether the dance accident and the motor vehicle accident caused the claimant divisible or indivisible injuries. The court found the injuries between the dance accident and car accident to be divisible.
The court awarded the following:
The dance Injury:
|Pain and suffering||$ 185,000.00|
|Past Income Loss||559,220.00|
|Loss of earning capacity||5,100,000.00|
|Cost of future care||48,000.00|
|Out of pocket expenses||21,563.54|
The motor vehicle accident:
|Pain and Suffering||$ 10,000.00|
|Out of pocket expenses||595.00|
The fact the the injury claim against the co-worker that injured the claimant at the bar was only $285,400 and the court awarded the claimant over $5.9 million probably means there will not be enough insurance money to cover the award. Posted by Mr. Renn A. Holness
Issue: Should a drunk patron that accidentally injuries someone be 100% responsible or should the bar be at fault for serving the alcohol?