$1,150,212 Awarded to Pedestrian Injured in Dark Intersection

In the recent case of Meghji v. Lee, 2011 BCSC 1108, Mr. Justice Johnston awarded over one million dollars to a pedestrian who was struck and injured while crossing a poorly lit intersection in Victoria in January 2003.

As a result of the accident, the plaintiff suffered a fracture to her left upper arm and a fracture just below her left knee. She also sustained an injury to her left ankle. The injuries resulted in a reduced range of motion in her shoulder, altered sensation in her hand and a limp. The plaintiff also sustained a brain injury, depression and chronic pain disorder, which the Court found were “inextricably intertwined”. The Court awarded the plaintiff $125,000 in non-pecuniary damages for her pain and suffering. The Court awarded $850,000 for loss of earning capacity, as her ability to earn an income had been “significantly impaired” by the injuries she sustained in the accident.

Contributory Negligence in Pedestrian Accident

In the course of the trial, the Court considered whether the plaintiff was partly at fault for allegedly crossing the street while the light at the intersection was showing the “Don’t Walk” sign. There was no question that the plaintiff was crossing the road in a marked crosswalk. On that question of the duty of the defendant driver in the circumstances the Court said the following:

[30] I find that Mr. Lee owed a duty to Ms. Meghji to keep a proper lookout while driving his vehicle, and to take reasonable care for other persons who were, or might reasonably be expected to be on the road (Hmaied v. Wilkinson, 2010 BCSC 1074; Nelson (Guardian ad litem of) v. Shinske (1991), 62 B.C.L.R. (2d) 302 (S.C.); Karran v. Anderson, 2009 BCSC 1105). I conclude that this duty existed whether or not the signal showed “Don’t Walk” when Ms. Meghji started into the crosswalk. Also in support of this conclusion is the language of s. 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318:

181. Despite sections 178 [Repealed], 179 [Right of way between vehicle and pedestrian] and 180 [Crossing at other than a crosswalk], a driver of a vehicle must

(a) exercise due care to avoid colliding with a pedestrian who is on the highway[.]
Considering whether the plaintiff was partly at fault for the accident, the Court held that the balance of evidence showed that she had started across the road on a “permissive walk signal”.

The Court also found the Ministry of Transportation 10% liable the accident for failing to have the intersection properly lit. On that point, the Court said the following:

[108] I conclude that MoTH breached the duty of care it owed to Ms. Meghji when, in 1983, it left the luminaires at the northwest and southeast corners of the widened intersection of Cloverdale Avenue and Blanshard Street. MoTH’s failure to consider the effect of moving the luminaire in the north-west corner farther from the south-west corner and crosswalk area on the light available to the south crosswalk and on the uniformity ratio in that portion of the intersection, or its failure to consider whether there were reasonably achievable ways to compensate for the reduction in available light, breached the duty of care MoTH owed to Ms. Meghji and contributed to her injury.

Losing the Protective Cloak of Litigation Privilege

In his reasons, Mr. Justice Johnson discussed the implications of lawyers becoming involved in the medical treatment of their clients. In particular, he said that in such circumstances the party could lose the benefit of “litigation privilege”. On this point the Court said the following:

[243] Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244] In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

Avoiding Duplication of Damages in Injury Case

In awarding damages for future care, the Court held that care must be taken to avoid duplication between awards for costs of future care and loss of future income. On that point, Mr. Justice Johnston said as follows:

[306] … every effort must be made to avoid duplication between awards for cost of future care and awards for loss of future income. To the extent that items recommended as part of a future care claim are items that might ordinarily have been purchased in any event out of the plaintiff’s earnings, a court must be careful to avoid duplication. Duplication can be avoided by awarding only the increase in costs beyond those that would ordinarily have been incurred by a plaintiff if an accident had not occurred, and by awarding as close to full indemnity for future earnings loss as is reasonable. Duplication can also be avoided by awarding reasonably full indemnity for the future care expenses and then reducing the future earnings loss claim to reflect that portion of future income that would ordinarily have been spent on items that have been awarded as part of the future care claim.

In the end result, the plaintiff was awarded $150,000 in future care costs.

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