In this Vancouver personal injury case(Jackson v. Mongrain)the claimant sought compensation for injuries arising out of a car accident which occurred on the Lougheed Highway in BC. The car in which the injury claimant was a passenger was stopped in the left lane for eastbound traffic waiting for the car ahead of it to complete a turn. The at fault driver drove her car into the rear of the car in which the claimant was seated. It is accepted that the claimant was injured was injured but the at fault driver alleged that the claimant failed to attend treatment and failed to try to get better.
The judge pointed out that the essential purpose of personal injury law ( tort law) is to restore the claimant to the position he or she would have enjoyed but for the negligence of the defendant.” (Athey v. Leonati, [1996] 3 S.C.R. 458, paragraph 20).
Interestingly the judge went into some depth regarding what he was required to put into his written decision. He refers to several Supreme Court of Canada decisions and then states at paragraph 7,
“The Supreme Court of Canada has stated once and for all that the need for a judge to state what he decided and why does not mean the judge must articulate how he made the decision. The “what” is the verdict and the “why” is the basis for the verdict. The judge is not required to set out every step, finding or conclusion taken, made or arrived at by him in the process of arriving at the verdict. Stating the “what” and giving the “why” against the background of the record is a matter of connecting the evidence and the law on one hand with the verdict on the other…decisions by the trial court judge as to the testimonial reliability of the various witnesses need not be “justified”.”
The judge found the injury claimant to be a good witness. The Supreme Court of Canada speaks of a witness’ “perception, memory, narration [and] sincerity”. (R. v. Khelawon, 2006 SCC 57 para. 2). The judge in the case being reviewed in this post found the claimant to be a sincere witness with normal perception with a good memory as to what occurred but not so good as to when, and good powers of narration save and accept that sometimes he fails to focus on exactly what it is he was being asked.
The injury claimant was found to have suffered soft tissue damage resulting in chronic pain in the neck and back .
The at fault driver had not established that the claimant had failed to mitigate his loss. As the judges sated, “The defendant must establish that the plaintiff [claimant] has acted unreasonably and that if the plaintiff had done what he has unreasonably failed to do his condition would be better than it is: Byron v. Larson, 2004 ABCA 398. ”
Ultimately the judge awarded $156,500.00 to the injury claimant which included $75,000.00 for pain and suffering and $75,000.00 for loss of earning capacity. Posted by Mr. Renn A. Holness
Issue: In car accident injury claim how much of the judge’s critical reasoning should be included in the personal injury decision?