January 31, 2014

Kevin Gourlay

Something has gone horribly wrong when a judge finds herself unable to assess damages at the end of a personal injury trial.  That was the conundrum faced by Madam Justice Russell in Le v. Point, 2014 BCSC 154, released today:

[55]         I find myself in the unfortunate position of being unable to make any findings regarding damages for the injuries Mr. Le has suffered.

[56]         Counsel for the defendants made submissions based on the assumption that Mr. Le was completely liable for the 2010 Collision and only entitled to damages for the 2008 Collision. He provided no alternative submissions regarding damages for the 2010 Collision, the divisibility of injuries, and the apportionment of damages between the defendants.

[57]         Counsel for the plaintiff made submissions based on the assumption that Ms. Dickson was completely liable for the 2010 Collision and Mr. Le was entitled to damages for both accidents. He similarly provided no alternative submissions. When asked during the hearing what his client’s position was regarding apportionment of damages if the plaintiff was found contributorily negligent for the 2010 Collision, plaintiff’s counsel insisted that there was no way that contributory negligence could be found. When further pressed, he made a bald statement that the injuries must be indivisible and did not provide any submissions on the calculation of damages.

[58]         The lack of sufficient argument on these points is disappointing when apportionment of liability for the 2010 Collision between the plaintiff and the defendant was a distinct possibility.

[59]         It would not be fair to the parties to make findings on damages without knowing their positions and without receiving argument on the matter. Counsel will provide written submissions detailing their positions and arguments on whether Mr. Le’s injuries are divisible or indivisible and how to calculate and apportion damages between the defendants under each head of damages given the finding of liability for the 2010 Collision and contributory negligence.

[60]         I leave it to counsel to set their own timelines for the exchange and submission of such arguments.

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