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New British Columbia Societies Act

In the spring of 2015, the new Societies Act (British Columbia) (the “New Act”) was passed which will replace the current Society Act (British Columbia) (the “Current Act”). The New

Who Gets the Ring?

I’ve heard it said that an engagement ring is one of the most important pieces of jewelry a woman will ever own. It likely will also be one of the

Proposed Changes to Disability Benefits

There are several upcoming changes to the rules regarding benefits received by people with disabilities from the ministry of social development and social innovation (the “ministry”) regarding asset limits, trust

Pay When Paid Clauses

There is a growing trend among contractors to shift the risk of the owner not paying to the subcontractor. This is done by inserting a pay when paid clause into

Death, Taxes, and the IRS

Benjamin Franklin once observed that “in this world, nothing is certain except death and taxes”, but recent developments with the Foreign Account Tax Compliance Act (“FATCA”) have led to considerably

New British Columbia Franchise Legislation

In an increasingly globalized and internet-dependent business marketplace, franchising has continued to expand as one of the world’s most popular business structures. A 2014 British Columbia Law Institute Report on

Recent Decision on Spousal Support

ARTICLE The highest court in British Columbia, the Court of Appeal, recently ruled on the issues of calculating a self-employed person’s Guideline income for spousal and child support purposes under Section

Breaking the Silence

"Honestly, for me, I never thought I would have the strength to leave. I thought I was trapped." This a story that is much to common among families in our current society.

Recent Changes to BC’s Family Law Act

When it comes to getting married, or living in a long-term common-law relationship in the Fraser Valley, one of the most important – and most contentious – issues that a couple can face is a marriage agreement, commonly known as a prenuptial agreement. It is particularly important where one party is bringing significant assets into the relationship, often in second marriages. While discussing and forming this type of agreement can cause tension in a relationship, it is a realistic and practical step to take to prevent family law problems later on. Not every relationship goes on the way it was planned or intended. Separation and divorce sadly are distinct possibilities for many couples – and while the ending of your relationship may leave you heartbroken, a prenuptial agreement may prevent it from also leaving you broke.

Wilson V. Fotsch, 2010 BCCA 226: Unjust Enrichment and Reciprocal Benefits

This case involved a common law relationship in which the parties were not married. The husband brought a claim for a declaration of constructive trust for a portion of the wife’s property. The common-law wife appealed from the husband’s successful application for a declaration of constructive trust. The parties began cohabiting in 1995 and separated in 2002. At the time the parties began living together, the wife owned a property with her mother, and her 50% interest was valued at $25,000. The wife subsequently purchased her mother’s interest and the parties lived in the home. The husband claimed to have made significant contributions, particularly in labour and improvements, to the property. He also worked in the wife’s janitorial business. In 2001 the wife sold the house for $129,900 and purchased a development property on Portage Road for $219,900. She obtained bank and other financing for the balance of the price. The husband claimed that he had contributed significant labour in improving the property and working on permits for subdivision. Throughout the relationship, the wife had worked two jobs and paid most of the family’s expenses. The husband was also employed, but his wages were not contributed to the family resources.

Importance of Properly Drafted Family Law Documents

Bill 16 has recently been introduced into the Provincial Legislature which proposes the introduction of the new Family Law Act.  One of the dominant features of the new bill is how it changes the “best interests of the child” test in parenting decisions from the paramount consideration to the only consideration.  The new Family Law Act created by the Bill could be in force as early as the Fall of 2012.  In future entries we will be discussing how this new Act affects the law in British Columbia, and how it affects your family.  Below we discuss a recent family law case which illustrates the confusion that can arise in the family law context as a result of a lack of specificity in drafting a court order.

Are You Married to Your Spouse?

Are you married to your spouse, or do you live in a common law relationship? In British Columbia, the answer to that question largely determines the property rights and financial rights of parties when their relationship breaks down. For married spouses, comprehensive statutes such as the federal Divorce Act and the provincial Family Relations Actprovide the starting point for division of property and other issues.

Pension Division Issues in Family Law

In Jarman v. Jarman, 2011 BCSC 1155, the Claimant was the former wife of the Respondent who was a retired Air Canada Pilot. The Respondent had an interest in two pension plans with Air Canada: the Air Canada Pension Plan for Pilots, and a Supplemental Retirement Plan (the “SRP”). Air Canada had a policy that no distribution would be made directly from the SRP and no direct settlement would be possible from the SRP.

Cross Border Issues: The Hague Convention and Child Custody

In the case of Medina v. Pallett (2010) B.C.S.C. 259, the petitioner father Medina was Honduran and the respondent mother Pallett was Canadian.  Together they had one child who was born in Honduras in 2005.  The child was left in Honduras with the child’s grandparents while Medina and Pallett attempted to settle in Canada.  By the Spring of 2008 Medina’s ability to remain in Canada remained uncertain.  He therefore no longer wanted to bring the child to Canada.  Pallett argued that Medina signed the child’s Canadian passport application and Medina denied doing so.  Without giving notice to Medina, Pallett went to Honduras and removed the child and brought the child to Canada.  Pallett then commenced divorce proceedings in Canada and sought custody of the child and child maintenance.  Medina brought an application to have the child returned to Honduras.

Formal Offers to Settle in Child Custody Trials

The Rules of Court allow for the service upon the opposing party of a formal offer to settle.  If the party making the formal offer to settle receives a result at trial that is equal to or more successful than the formal offer, the offering party may receive his or her costs and may even argue for double costs following the trial result.

Arrears of Child Support – Dubreuil V. Poloway

Dubreuil v. Poloway2010 B.C.C.A. 297.  In this case following a trial in 2001, the father was found to have a Guideline income for child support of $22,000 per year.  The father was ordered to pay monthly child support in the amount of $328 per month with respect to the parties’ twin children and to pay the mother 40% of the daycare expenses.  The arrears of child support at trial and expenses were fixed at $6,500.  The father failed to comply with payment and did not file income tax returns for 2001 through 2007 until June of 2009.  The father then applied to have his child support arrears reduced based on his actual income during the past several years.  The child support arrears were $16,000.  The Chambers Judge found in favour of reducing the arrears to $4,000.

The Proposed Family Law Act: Changes to the Best Interests of the Child and Guardianship

Commencing in 2006 the British Columbia Ministry of Attorney General has been formulating a new Family Law Act to replace the present Family Relations Act. The proposed new legislation introduces sweeping changes to issues of child custody and guardianship, property division and spousal support, among other issues.

Whether the proposed new legislation will be passed into law remains to be seen. However, at present, it appears as though there is at least a realistic possibility that sweeping changes to family law in British Columbia of the nature proposed in the new Family Law Act will come into force in the coming years.

McCaffrey V. Paleolog – Obligation to Support Your Children

Even here in the beautiful Fraser Valley, it can be challenging to find time to spend with your family.  Any parent knows how fast kids can change from one day to the next.  For those of us in a shared custody situation, or for those who have had to deal with a painful divorce or separation, it never seems like you can spend as much time with your children as you would like.  In British Columbia, however, the Courts have decided that your obligation to support your children financially is just as important.

Semancik V. Saunders – Supporting Grown Children

We all know that the breakdown of a marriage can be hard on children.  A lot of what we deal with in family law is simply trying to make the best of a hard situation by trying to make life as consistent and safe as possible for them.  This is obviously the hardest to do when they are young, but it’s important to understand how family law deals with the transitional stage when they go from child to adult as well.  This is the age when they buy their first car, or they head off to university.  Sometimes at that age our children want to explore away from their homes in Abbotsford or Chilliwack, and they want to spread their wings and experience the world.  What then are the responsibilities of a parent paying child support?

Court Varies Will and Awards 5.5 Million

The British Columbia Supreme Court has released reasons in the case of Wilson v. Lougheed Estate. This was an action by Kelly Wilson for an order varying her mother Norma’s will in her favour pursuant to the Wills Variation Act. The executor of the will was Kelly’s adoptive father William Lougheed, and he made a counterclaim on behalf of the Estate against Kelly for unpaid loans made during Norma’s lifetime. The net worth of the estate was nearly $26 million.

Lawyers Brace For Change: The Family Law Act

The Family Law Act (the “Act”) comes into force on March 18, 2013. In the coming months and years it will certainly be interesting to watch jurisprudence pertaining to the Act unfold.

Some of the most sweeping changes are contained in the provisions pertaining to common law spouses, the provisions pertaining to property division and the new duties imposed on lawyers.

The Concept of Guardianship: New and Improved?

With the coming into force of the Family Law Act (the “Act”) on March 18, 2013, the concepts of Custody and Guardianship have been significantly affected. Prior to the introduction of the Act, upon the dissolution of a marriage involving children, the Divorce Act (“DA”) and the Family Relations Act (“FRA”) governed issues surrounding parenting arrangements. The DA, dealt with Custody while the FRA dealt with both Custody and Guardianship. Thus, an overlapping concept of Custody existed under the DA and the FRA. This concept, while somewhat empty, was largely valued by clients for the perception of power and control it implied, while guardianship was valued for the rights it provided parents to be involved in the major decisions regarding the child.

Unfair Division of Property – Change in Standards

On March 18, 2013, BC’s new Family Law Act (the “Act”) came into force replacing theFamily Relations Act (the “FRA”). In the three months since enactment there have been few cases that have been decided solely under the new Act but in the recent decision of G.(L.) v. G.(R.), Brown J. had the opportunity to consider the change in standards in determining the division of property from the FRA to the new Act.

Court of Appeal Upholds Liability Waiver Decision

In LOYCHUK V. COUGAR MOUNTAIN ADVENTURES LTD., 2011 BCSC 193 (the subject of a past blog entry available here), Goepel J. held that the Plaintiff could not sue an outdoor adventure company for the injuries she suffered in a zip-lining accident because of the release form she had signed. This decision was appealed to the BC Court of Appeal, which recently confirmed Goepel J.’s conclusion that the Plaintiff’s action was barred by the fact that she signed the release before the zip-lining.

Court Affirms Need For “Convincing Evidence” Where Evidence of Injury is Entirely Subjective

In CARTER V. ZAHN, 2012 BCSC 595 (“CARTER”), a judgment released on April 24, 2012, Verhoeven J. held that requiring “convincing evidence” where a plaintiff presents only subjective evidence of ongoing injuries does not contradict Rothstein J.’s holding in F.H. V. MCDOUGALL, 2008 SCC 53 (“MCDOUGALL”) that there is only one standard of proof applicable to civil cases.

Court of Appeal Considers Gap in Plaintiff’s Report of Symptoms

In EDMONDSON V. PAYER, 2012 BCCA 114 (“EDMONDSON”),  a judgement released on March 8, 2012, the Court of Appeal considered and rejected a number of arguments by the appellant (the Defendant), who was appealing from a judgment that awarded the Plaintiff $40,000 in non-pecuniary damages due to injuries suffered in a motor vehicle collision.  One of these arguments was based on the fact that there was a 31-month gap between reported symptoms in the Plaintiff’s clinical records.

Court Awards $50,000 For Pain and Suffering For Soft Tissue Injury

On February 21, 2007, the Plaintiff was riding in the front passenger seat of a vehicle driven by her friend, the Defendant. As the Defendant proceeded through an intersection, a van broadsided the driver’s side door of her vehicle. The impact was reasonably severe and caused significant damage to the left side of the Defendant’s vehicle. Although the Plaintiff was wearing her seatbelt, she claimed that the force of the collision caused the right side of her body to strike the interior of the Defendant’s vehicle.

Effect of Video Surveillance on Assessment of Damages

On December 23, 2011, the BC Supreme Court released a decision on the use of video surveillance evidence in a motor vehicle accident case. In WILKINSON V. WHITLOCK, 2011 BCSC 1781 the Plaintiff was injured in a 2007 motor vehicle accident in Vernon, BC. The Defendant was found completely at fault after it was determined that she drove through a red light and collided with the Plaintiff’s vehicle. As a result of the collision, the Plaintiff claimed that she suffered an injury to her back. During the trial, the Plaintiff testified about her symptoms.

Court Considers Criteria For Awarding “Scale C” Costs

Reasons for judgment on the issue of costs relating to the trial decision of X. V. Y., 2011 BCSC 944, were released on January 13, 2012 (reported at 2012 BCSC 37). The trial decision of X. V. Y., which dealt with a motor vehicle accident involving a police officer responding to an emergency call, was the subject of a past blog entry on contributory negligence and liability, available here.

Plaintiff’s Claim For Interest on Disbursement Financing Disallowed

A previous blog entry (available here) discussed the case of CHANDI V. ATWELL, 2011 BCSC 1498 (“CHANDI”), in which recovery of financing costs on a reasonable disbursement was allowed by Registrar Cameron. In that case, Registrar Cameron declined to award the full amount of disbursement financing, instead making “allowance for disbursement interest based upon Registrar’s rates with the calculation of the total amount to be akin to the calculation of interest payable on special damages pursuant to the relevant provisions of COURT ORDER INTEREST ACT” (at para. 75).

Court of Aappeal Finds Massage Therapy a Mandatory Part VII Benefit

In the important decision RAGUIN V. INSURANCE CORPORATION OF BRITISH COLUMBIA, 2011 BCCA 482(“RAGUIN”), released November 29, 2011, the Court of Appeal considered the Plaintiffs’ claim that  ICBC had an obligation to pay for massage therapy benefits under Part 7 of the INSURANCE (VEHICLE) REGULATION(the “REGULATION”).

Plaintiff’s Claim Struck For Failure to Prove Liability of Unidentified Driver

On November 9, 2011, the Honourable Mr. Justice Williams of the British Columbia Supreme Court delivered his judgment in PAGUIO V. FRASER, 2011 BCSC 1519.

The trial was a result of an action filed by Cesar Paguio, to establish liability for the serious head injury he suffered in an auto accident on February 28, 2010. At the time of the accident, Mr. Paguio was driving his motor scooter in the right hand lane along Knight Street, in Richmond. He suddenly crossed into the left lane occupied by a Volkswagen, operated by Mr. Fraser, striking Fraser’s vehicle in the area of the right front wheel well and tire.

Damages Not Reduced Based on a Lack of Doctor Visits

The British Columbia Supreme Court recently held that the number of visits to a doctor’s office does not determine the value of the Plaintiff’s personal injury claim. In TARZWELL V. EWASHINA, the Plaintiff was injured in a motor vehicle collision in 2007 and suffered soft tissue injuries to the lower back and trapezius muscle. After she was injured, the Plaintiff decided not to burden the medical system with unnecessary visits to physicians who would give her little or no further advice other than what she had already received and followed.

Interest on Disbursements Reduced by Registrar

Given the often expensive nature of legal proceedings, the question of whether one party will be responsible to pay the costs incurred by the other party can become highly contentious.

In CHANDI V. ATWELL, 2011 BCSC 1498 (“CHANDI”) [Decision of Registrar: reasons for judgment released on November 4, 2011], District Registrar Cameron was faced with an assessment of the Plaintiff’s costs in a personal injury action that settled for $900,000, plus taxable costs and disbursements. One issue the Registrar had to consider was the recoverability of financing costs incurred by the Plaintiff on disbursements.

Problems With BC’s Graduated Licensing Program

Problems with BC’s Graduated Licensing Program

A recent study of the Insurance Corporation of British Columbia’s graduated licensing program has revealed a problem. Although the program appears to benefit 16-year-old drivers, it may inadvertently increase the number of accidents among 18-year-old drivers.

The provincial government introduced the graduated licensing program in 1998 to decrease the rate of accidents amongst new drivers. The program increased restrictions on new drivers, irrespective of their age. After passing an exam, new drivers are issued a “learner’s license” for the first year and a “novice license” for the following two years.

Defence Application to Transfer Action to Small Claims Court Denied

A common issue that arises in motor vehicle claims is whether to commence an action in BC Supreme Court or Provincial Court (also referred to as Small Claims Court).  In this province, the BC Supreme Court has broader authority and discretion than the Provincial Court.  Motor vehicle claims, however, can be heard by either level of court.  Claims for damages in Provincial Court, however, are limited to $25,000.  Persons who wish to commence an action should carefully consider the nature of their injuries and the respective amount of damages.  Damages may include money for pain and suffering, loss of income, and possible future cost of care.

On September 21, 2011, the BC Supreme Court released the decision of KOONER V. SINGH.  The plaintiff in this case was injured after he was struck by the defendant’s vehicle.  The plaintiff commenced an action against the defendant in BC Supreme Court.  The defendant, however, brought an application to transfer the case to Provincial Court. The BC Supreme Court dismissed the defendant’s application.

Cyclist Riding Through Crosswalk 15% at Fault For Accident

In DOBRE V. LANGLEY, 2011 BCSC 1315 (“DOBRE”), a decision released October 4, 2011, the Court considered how to apportion liability in a personal injury case where the Plaintiff was struck by the Defendant while riding his bike in a cross-walk. The DOBRE decision provides an example of how compliance with the “rules of the road” can directly affect who is liable for a particular accident, and to what extent.

Court of Appeal Reiterates Appropriate test For Causation

FARRANT V. LAKTIN, 2011 BCCA 336 (“FARRANT”), an August 2, 2011 judgment of Neilson J.A., underscores how causation is not an “either/or” proposition. The trial judge in FARRANT held that the Plaintiff’s pre-existing spinal degeneration was the cause of his ongoing pain, and that the whiplash he suffered in the accident at issue resolved within four months. These conclusions led the trial judge to award damages of $20,000; the Plaintiff appealed.

Court of Appeal Refuses to Set Aside Jury Award of $2,000

In the case of SMAGH V. BUMBRAH, 2011 BCCA 281 (“SMAGH”), the Court considered an appeal by the Plaintiff of a trial decision in which a Supreme Court jury awarded the Plaintiff $2,000 for non-pecuniary damages and nothing for past loss of income, loss of future earning capacity, or cost of future care. The collision which gave rise to the proceedings was a rear-end collision that resulted in the Plaintiff claiming neck and back injuries.

Defendant Not Awarded Costs Despite Beating Formal Offer to Settle

In the case of GATZKE V. SIDHU, 2011 BCSC 1214 (“GATZKE”), released on September 9, 2011, Saunders J. provided reasons on costs. In an earlier judgment on liability and quantum of damages (reported at 2011 BCSC 988), the Plaintiff was found to be 70% at fault and consequently received only 30% of the $31,500 awarded at trial.

However, before any award of damages was made the Defendants had made a settlement offer of $50,000 pursuant to Rule 9-1 of the SUPREME COURT CIVIL RULES, an amount much higher than the approximately $10,000 the Plaintiff ultimately received. Because the settlement offer was higher than the amount awarded, the Defendants sought an order stating that they were entitled to all of their costs incurred after the offer was made. This kind of order is permitted by Rule 9-1(5).

Police Officer Not Contributorily Negligent For Riding Motorcycle in Median

In the case of X V. Y, 2011 BCSC 944 (“X. V. Y.”), the Court determined the appropriate apportionment of liability for a serious collision that arose out of unique factual circumstances. The Plaintiff, Mr. X., was an R.C.M.P. officer who was responding to an urgent emergency situation after the collapse of an overpass on the Lougheed Highway in Coquitlam. The Plaintiff was riding a police motorcycle with lights and sirens activated when he was struck by the Defendant, Mr. Y., who was executing a U-turn to avoid backed-up traffic near the collapsed overpass.

The evidence of the case critically disclosed that the Plaintiff had activated his emergency lights and sirens and repeatedly sounded his air horn when responding to an active “Code 3” call. Code 3 calls require responding officers to activate their lights and sirens and proceed to the scene of the emergency at a safe and reasonable speed.

Court Finds Case Planning Conference Recordings Not Presumptively Available

In the case of PARTI V. POKORNY, 2011 BCSC 955 (“PARTI”), the Court considered whether it was appropriate to grant the Defendant an order allowing access to the recording of a case planning conference (“CPC”). The Defendant’s application was made under Rule 5-2(7) of the SUPREME COURT CIVIL RULES, which states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order”. The Defendant in PARTI was seeking a court order which would allow a court reporter to access this recording and make a transcript based on its contents.

In PARTI, the Plaintiff sustained injuries in a motor vehicle accident for which the Defendant had admitted liability. Defence counsel argued “on behalf of the defendant, and in reality ICBC” (at para. 5), that the Court’s analysis should begin with the presumption that CPC transcripts should be available for public access in conformity with the “open court principle”, unless a compelling reason for not granting access under Rule 5-2(7) exists.

Low Velocity Motor Vehicle Case Decided by Summary Trial

One advantage of bringing an action in the B.C. Supreme Court rather than Provincial Court is the availability of the “summary trial” process governed by Rule 9-7 of the SUPREME COURT CIVIL RULES, B.C. Reg. 168/2009. A summary trial allows the court to resolve a case based solely on written evidence and affidavits, greatly reducing the costs and time required to resolve a matter. The summary trial process can be used where there is not a significant dispute over the facts or issues of a case and there is no need to make oral submissions on controversial points.

The case of DOLHA V. HEFT, 2011 BCSC 737 (“DOLHA”) provides an example of how the summary trial process can be used in a personal injury context. In this case, the parties did not dispute liability, and both sides consented to the use of the summary trial process. The Court agreed that the summary trial process was appropriate given that the material facts were not in dispute and the accident at issue was a low-velocity collision resulting in mild whiplash injuries. The only issue to be decided was the appropriate amount of non-pecuniary damages. When deciding what an appropriate quantum of damages would be, the Court referred to the Plaintiff’s affidavit and expert medical reports to assess the nature of the injuries and the impact they had on the Plaintiff.

Trial Adjourned Based on Lack of Report From Treating Expert

In the case of JURCZAK V. MAURO, 2011 BCSC 512 (“JURCZAK”), the Court had to consider whether an adjournment application could be ruled on at the Trial Management Conference (“TMC”) stage. The Court ultimately found that it could, as long as affidavit evidence did not need to be considered to determine whether adjournment was appropriate.

JURCZAK dealt with a personal injury action where the Plaintiff was seeking an adjournment at the TMC because a specialist who had treated the Plaintiff refused to give a medical report as requested. The specialist had “adopted a practice under which he provides medical-legal reports only when he has been retained for that purpose and not when he is involved as a treating doctor” (at para. 3). Counsel for the Plaintiff consequently requested more time to pursue another expert or appeal to the specialist’s governing professional body.

BC Court Refuses Jurisdiction For Alberta Accident

It may seem logical to bring a personal injury claim in one’s home province regardless of where the damage occurred, but the law of conflicts often requires a detailed factual analysis to determine whether there is a “real and substantial connection” between the facts of the case and the plaintiff’s chosen jurisdiction. In the case of DEMBROSKI V. RHAINDS, 2011 BCCA 185 (“DEMBROSKI”), released April 14, 2011, the British Columbia Court of Appeal considered whether a British Columbia court could take jurisdiction for a personal injury action arising from a motor vehicle accident which occurred in Alberta. In its conclusion, the Court found that there was not a real and substantial connection to British Columbia, given that the only connection to the jurisdiction was the fact the Plaintiff resided in B.C. and suffered the deleterious effects of her injuries in the province upon returning home after the accident.

Slippery Tiles Result in Liability Finding Against Hotel

In DRUET V. SANDMAN HOTELS, INNS & SUITES LIMITED, 2011 BCSC 232 (“DRUET”), the Court found a hotel liable for failure to ensure that the Plaintiff was reasonably safe in using the premises, as required by s. 3(1) of the OCCUPIERS LIABILITY ACT. In an indication of how important detailed evidence can be in “slip and fall” cases, the Court placed significant weight on an expert report which measured the acceptability of the coefficient of friction for the hotel’s tile. The Court also found the Plaintiff contributorily negligent due in part to her failure to wipe her feet on the mat at the entrance, resulting in equally apportioned liability.

In DRUET, the Plaintiff slipped and fell after stepping onto a tile surface in the hotel lobby, suffering a serious ankle fracture. While it was raining outside that day, the evidence was inconclusive as to whether the tiles themselves were wet at the time of the incident. However, the fact that the Plaintiff had just been walking in the rain allowed the inference that the soles of her shoes were wet at the time of the fall.

Deduction of Part VII Benefits From Tort Award

In GIGNAC V. ROZYLO, 2011 BCSC 237 (“GIGNAC”), a judgment released on February 25, 2011, the Court considered an application for an order:

“For an estimate of the statutory deductions the plaintiff may be entitled to receive under Part 7 of the Regulations to the INSURANCE (MOTOR VEHICLE) ACT and that a deduction be made pursuant to s. 25 of the INSURANCE (MOTOR VEHICLE) ACT from the damages award for special damages and future costs of care.”

Release of Liability Found to Be Enforceable

High-risk activities are a staple of recreation in British Columbia; sports such as heli-skiing and rock climbing are naturally suited to the province’s vast and diverse wilderness. Extreme sports activities can also be very profitable, and there are countless companies which seek to profit from people’s desire to get out and enjoy the outdoors.

With the popularity of  these high-risk activities it might seem like there is a high probability of personal injury suits against sports or recreation businesses being advanced once something inevitably goes wrong. However, the companies themselves are more than aware of this risk, and require liability waivers to be signed before customers set off in pursuit of adventure. The Supreme Court of B.C. recently addressed the question of how meaningful the signing of a release before engaging in a high-risk activity is when the company at issue is negligent.

Court Compels Production of Documents From Out of Jurisdiction

Whether the British Columbia Supreme Court has the power to order a litigant to authorize a third party in another jurisdiction to produce their records to another litigant has been a recent debate in our courts. The issue was addressed in NIKOLIC V. OLSON, 2011 BCSC 125.

This was an application related to a personal injury action where the plaintiff claimed non-pecuniary damages and wage loss. The plaintiff lived in Saskatchewan but the accident occurred in British Columbia. The defendant was not satisfied with the document discovery that had been received, so he brought an application to compel the plaintiff to consent to production of his records held by a number of persons and agencies located in Saskatchewan including a number of doctors and an insurance agency.

Mr. Justice Williams concluded that the Supreme Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the RULES OF COURT. As such, the order was made.

Judge Criticizes Video Surveillance

There are times when video surveillance can backfire on a defendant and have the opposite effect as was intended. A recent example is the case of MADILL V. SITHIVONG, 2010 BCSC 1848.

This case was a claim for damages arising out of a motor vehicle accident occurring on June 28, 2004. The plaintiff, Mr. Madill, was a passenger in a vehicle operated by one defendant when the car was struck by another vehicle operated by a second defendant. Mr. Madill made a claim for general damages among other things which included injuries to his neck, arm, lower back, and right leg. He also claimed he suffered a mild traumatic brain injury, which was accompanied by vision, balance, and memory problems.

Much of the evidence at trial related to the plaintiff’s loss in quality of life. Before the accident, he was employed by a trucking company and would often work 70 hours per week with energy to spare. He led a satisfying and active lifestyle with his wife, with whom he shared a passion for motorcycles. Mr. Madill owned a Harley Davidson ultra classic, and his wife testified that they were out riding almost every evening. Their bikes were insured year round, and they logged approximately 35,000km per year, which included weekend trips.

Insurer Resources Considered in Determining Award of Costs

In HUNTER V. ANDERSON, 2010 BCSC 1591 (“HUNTER”), a case related to a slip and fall incident, the Court provided a helpful summary of the relevance to the question of costs that a defence being provided by a large insurer may have. While the Court expressed the need for caution when considering the resources of an insurance company in this context, it did find that such a consideration can be relevant in specific circumstances. Where an insurer’s resources create an advantage by allowing for the defendant to “test” a plaintiff’s case despite the presence of a reasonable settlement offer, the Court confirmed that it is permissible to take this into consideration when conducting the requisite costs analysis under Rule 9-1 of the SUPREME COURT CIVIL RULES, B.C. Reg. 168/2009.

Plaintiff Receives Award For Loss of Earning Capacity Despite Receiving Promotion After Accident

In JACKSON V. MONGRAIN, 2010 BCSC 1866 the plaintiff successfully received an award for loss of future loss of earning capacity while remaining employed in a different role with his employer after the accident.

The plaintiff was 42 years old. He was employed as a labourer in demolition and before the accident was involved in work that “any man would recognize as backbreaking labour”.

Jackson’s primary complaint was a knee injury. He had some minor knee problems in the past but the court found that as of the date of the accident, he was “working as a labourer doing very heavy labour, doing all he wished to do while not at work and that in no context did either or both of his knee restrict his activities”.

Two-Year Limitation Found Not to Bar Action Against Foreign Insurer For Recovery of No-Fault Benefits

In MOLDOVAN V. ICBC, 2010 BCSC 1778 (“MOLDOVAN”), a judgment released on December 10, 2010, the Court found that a foreign insurer which had purportedly stepped into the shoes of ICBC through a Power of Attorney and Undertaking (“PAU”) could not rely on the two-year limitation period in s. 103 of the INSURANCE (VEHICLE) REGULATION, B.C. Regulation 447/83 to deny an action for no-fault coverage under Part 7 of the regulations. This decision illustrates how it is important not to assume that statutory limitation periods operate to bar claims for no-fault benefits where an out-of-province insurer is named as a defendant.

Left Turning Vehicle Not Liable For Accident

In THOMSON V. HUNT, 2010 BCSC 1858 (“THOMSON”), released December 24, 2010, the Court had to consider liability stemming from a collision in which the Defendant was found to have been speeding down a hill with limited visibility when he struck the Plaintiff, who was attempting to turn left up the hill.

Procedural Aspects of New Court Rules

The advent of the new Supreme Court Civil Rules has created a some uncertainty for litigators, particularly with respect to rules that did not exist before the transition of July 1, 2010.

 

Two such examples are Rules 12-2 and 5-3, which govern the newly-created concepts of a Trial Management Conference (“TMC”) and a Case Planning Conference (“CPC”). In the recent case VERNON V. BRITISH COLUMBIA (MINISTRY OF HOUSING AND SOCIAL DEVELOPMENT) (LIQUOR DISTRIBUTION BRANCH), 2010 BCSC 1688, some parameters were set as to the limits of what can be achieved at a TMC and a CPC.

The underlying action to which the conference pertained was a wrongful dismissal claim. The trial was set for November 22, 2010, and the parties appeared before the trial judge on November 4, 2010. At the TMC, the defendant sought (1) an adjournment of the trial; (2) a publication ban, and (3) an order that the defendant present its case first. The plaintiff opposed all three orders.

Plaintiff Awarded $2,258,592 For Future Cost of Care

In O’CONNELL (LITIGATION GUARDIAN OF) V. YUNG, 2010 BCSC 1764, the 58 year old plaintiff was severely injured when she was struck by a tractor trailer inside the George Massey Tunnel. Prior to trial, counsel agreed on a past and future wage loss award of $125,000 under each head of damage. The unresolved issues at trial were the amount of damages for pain and suffering, the cost of future care, and whether or not an in trust award was warranted.  The lead counsel in this case was James D. Baker Q.C. of Baker Newby.

The plaintiff’s tragic injuries included closed head injuries to the tissue of the brain, cervical spine fracture, fracture to the right femur and ankle, fracture to the left tibia and fibula, various toe fractures, rib fractures, nasal fracture, sternal fracture, and internal injuries including laceration of the spleen and liver. She required a series of surgeries for the fractures and spent five months in various hospitals recovering and rehabilitating the immediate effects of the injuries.

Hearsay in Expert Report Allowed Into Evidence

It is common in personal injury cases for an expert to review extensive clinical records in forming the basis for his or her opinion. In the recent case of MAZUR V. LUCAS, 2010 BCCA 473, the British Columbia Court of Appeal released reasons for judgment addressing expert reports and the use of hearsay evidence. The judgment confirms the common law exception that reliance on hearsay evidence by an expert in forming an opinion does not automatically render that opinion inadmissible.

The plaintiff Ms. Mazur was injured in a car accident in 2006. The contested issue at trial was whether the plaintiff’s disabling condition was her pre-existing psychological symptoms or the chronic pain disorder caused by the accident. The plaintiff relied on the opinion of psychiatrist Dr. O’Shaughnessy who in his report referred to the notes of the plaintiff’s treating psychiatrist Dr. Gibson, and another psychiatrist who had examined her, Dr. Solomons. These doctors were not called as witnesses at the trial and no reports from those doctors were served by either party pursuant to Rule 40A (now Rules 11-6, 11-7). Therefore, their evidence was hearsay. On this basis, the trial judge ruled that the portion of Dr. O’Shaughnessy’s report which referred to the evidence of these doctors was inadmissible and redacted it from the evidence before the jury.

U-Turning Defendant 100% Liable For Accident

Be careful when you make a u-turn. That is the message of the recent personal injury case HOUGH V. WYATT, 2010 BCSC 1375 which was a trial held on liability only.

The defendant was driving with his friend southbound on 168th Street in Surrey and just as they passed through the 80th Avenue intersection, the pair noted a vehicle they were interested in looking at on the opposite side of the street. At that point on 168th, there was one lane for southbound travel and one for northbound travel. In them middle was a meridian delineated by solid yellow lines. To the right of the southbound lane was a bus stop – an area designated for transit to pick up and drop-off. The defendant pulled off into the bus area and left the motor running, with the intent of making a u-turn across the southbound lane and into the northbound lane to have a look at the vehicle.

Attempted Withdrawal of Admission of Liability

In the recent case of SURERUS V. LEROUX, 2010 BCSC 1344 (“SURERUS”) the court considered the defendant’s application for leave to withdraw the admission of liability which was plead in the statement of defence. The application was made on May 28, 2010, so the old Court Rule 31(5)(c) was considered.

The action was a claim for damages which arose out of a motor vehicle accident occurring on September 3, 2006. A writ and statement of claim had been filed on October 6, 2008. On October 29, 2008, the ICBC adjuster for the plaintiff’s claim instructed defence counsel to admit liability. At the hearing for the application, the adjuster gave evidence that she gave those instructions without having turned her mind to the issue of negligence. A statement of defence was filed and served accordingly.

Severing Liability and Quantum Trials

In the case CAYOU V. CAYOU, 2010 BCSC 1224 (“CAYOU”), released August 30, 2010, the Plaintiff argued that it was appropriate to sever the trials of liability and quantum of damages due to the economic benefit that such a severance would create for her. Because the Plaintiff was impecunious, the ability to first determine the issue of liability before incurring the expenses associated with acquiring medical opinions and the other evidence required to determine the appropriate level of damages was potentially of great value to her.

The Court acknowledged that the Plaintiff had much to gain by first dealing with the issue of fault before moving on to consider damages, but ultimately agreed with past case law which had held that such economic considerations were not relevant, even where a plaintiff had little or no monetary resources. In particular, the Court referred to BIGGS V. I.C.B.C., 2008 BCSC 1343, a case in which the Court pointed out that “the financial advantage to [the Plaintiff] that would flow from separate trials of liability and damages would flow equally to most, if not all, plaintiffs in personal injury actions”.

Late Defence IME Disallowed

In the recent case WRIGHT V. BRAUER, 2010 BCSC 1282 (“WRIGHT”), the Court considered an application by the Defendants for an order requiring the Plaintiff to submit to an independent medical examination by an orthopaedic surgeon on September 9, 2010. The trial in WRIGHT was set for November 18, 2010 and the Defendants’ application was made on Short Notice on September 8, 2010.

The Court began its analysis by pointing out that the new SUPREME COURT CIVIL RULES, B.C. Reg. 168/2009 establish that all expert reports must be served at least 84 days before the trial date pursuant to Rule 11-6(3), whereas Rule 11-6(4) requires that “response” reports be served 42 days before trial. Given these time requirements, the expert evidence sought by the Defence in this case could have been admitted under Rule 11-6(4) if characterized as a response report, but the 84-day requirement in Rule 11-6(3) had already lapsed at the time of the application. The Court in WRIGHT ultimately held that the examination being sought by the Defendants was not a response report and was therefore subject to the 84-day requirement.

Court Costs For Awards of Under $25,000

In BRAR V. KAUR, 2010 BCSC 1220 (“BRAR”), a judgment released on August 30, 2010, the Court considered whether the Plaintiff was entitled to costs despite bringing an action in Supreme Court which could have been brought under the jurisdiction of the Small Claims Court.  Liability had been admitted by the Defendant, so all that remained was for the Court to assess the amount of damages suffered as a result of the motor vehicle accident at issue and deal with the matter of whether the Plaintiff was entitled to his costs.

The Court began its analysis by pointing out at paragraph 56 that Rule 14-1(10) of the SUPREME COURT CIVIL RULES, B.C. Reg. 168/2009 states that “a plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the SMALL CLAIMS ACT is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders”. Because the Court in BRAR found that there was no judicial precedent which provided any basis for an award which could exceed the $25,000 limit on the jurisdiction of the Small Claims Court, it found Rule 14-1(10) to be applicable.

Court Awards Discretionary Amount For Loss of Housekeeping Capacity

In the case GREWAL-CHEEMA V. TASSONE, 2010 BCSC 1182 (“TASSONE”), released on August 23, 2010, the Court awarded damages for “loss of housekeeping and childcare capacity”, despite the joint Defendants’ arguments against such an award. In this case, the Plaintiff was pregnant when she suffered various soft tissue injuries as a result of a motor vehicle accident. These injuries lasted approximately 18 months, preventing her from carrying out certain activities around the home both before and after the birth of her child.

The first argument made by the Defendants in TASSONE was that an award for loss of housekeeping and childcare capacity was inappropriate because there had been no specific pleading relating to the subject matter. This was found not to be an obstacle to recovery because “it is inherent in the nature of a complaint by a plaintiff positioned as this plaintiff was positioned that just such a claim for damages will be made” (at paragraph 62). The Court also held that British Columbia law does not require the pleading of a discrete head of damages for loss of housekeeping capacity, citing MCTAVISH V. MACGILLIVRAY, 2000 BCCA 164.

Mitigation For Failure to Exercise

In SCHMIDT V. HAWKINS, 2010 BCSC 1154 (“SCHMIDT”), a judgment released on August 16, 2010, the Court addressed the issue of mitigation and the nature of the Plaintiff’s duty to follow medical advice (at paragraphs 142-146). The Court began its analysis by noting that the onus was on the Defendant to establish the existence of a failure to mitigate on a balance of probabilities. However, the evidence in this case allowed the Court to quickly conclude that this burden had been discharged.

Divisible Injuries

While last week’s entry dealt with the applicability of joint and several liability to indivisible injuries, a case released on August 11, 2010, DANICEK V. ALEXANDER HOLBURN BEAUDIN & LANG, 2010 BCSC 1111 (“DANICEK”), provides an example of how a court may still distinguish between injuries caused by multiple tortfeasors and decline to impose joint and several liability. In DANICEK, the Court had to determine whether injuries arising from a dance accident were inextricably linked with subsequent injuries arising from a motor vehicle accident.

Before engaging in its analysis of the facts, the Court referred to the case discussed in last week’s entry,BRADLEY V. GROVES, 2010 BCCA 361 (“BRADLEY”). While the Plaintiff in DANICEK argued that she would have recovered from her debilitating injuries suffered in the dance accident “but for” the subsequent motor vehicle accident, the Court held that it is no longer appropriate to determine damages by reference to a plaintiff’s condition immediately prior to a secondary injury where a plaintiff is claiming “aggravation” of an indivisible injury. Instead, the Court held that the proper approach in light of BRADLEY is to first determine whether the injuries are divisible or indivisible. If the claimed injuries are indivisible, any single tortfeasor can be held liable for the totality of the damages. If they are divisible, each tortfeasor is liable only for his or her respective amount of damage. The analysis does not begin with asking how much “worse” the second accident made a plaintiff’s pre-existing injuries, but rather whether or not the injuries themselves are capable of being differentiated.

Court of Appeal Considers Indivisible Injuries

The case of BRADLEY V. GROVES, 2010 BCCA 361 (“BRADLEY”), released on July 29, 2010, dealt with “indivisible” injuries resulting from two separate accidents. At trial, the Defendant was found to be responsible for all injuries suffered by the Plaintiff, despite the fact that the initial injuries caused by the Defendant’s negligence were later compounded by an unrelated accident.

On appeal, the Defendant argued that the trial court should have taken the approach advocated in LONG V. THIESSEN, [1968] B.C.J. No. 1, 65 W.W.R. 577 (C.A.), whereby courts would “take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial” (BRADLEY, para. 33).

Court Considers the “Agony of the Moment”

In the case HILDEBRAND V. MUSSEAU 2010 BCSC 1022 (“HILDEBRAND”), judgment released July 21, 2010, the issue “agony of the moment” was considered. The cause of action in HILDEBRAND arose when the Plaintiff, who was riding dirt bikes side-by-side with a friend along the right-hand side of the road, was forced to take evasive action after noticing the Defendant driving towards him on the wrong side of the road. The Plaintiff was struck by the Defendant’s truck as he cut in front of him in an attempt to avoid the collision.

The Plaintiff argued that although his decision to cut across the road in front of the Defendant’s truck ultimately led to the accident, he was entitled to rely on the “agony of the moment” rule described in the case of WORMELL V. HAGEN, 2009 BCSC 1166 (“WORMELL”). In WORMELL, the Court referred to the common law rule that individuals who find themselves in “emergency situations” are not required to conform perfectly to the usual standard of care. The “agony of the moment” defence to contributory negligence recognizes that it is not always possible to respond with perfect clarity of thought in highly stressful situations. This rule is premised on the idea that, in general, the standard of care in a given situation is only that of a “reasonable” person.

Court Differentiates Between “Alerted” and “Unalerted” Response Time

In the case WALTER V. PLUMMER, 2010 BCSC 1017 (“WALTER”), released on July 20, 2010, the Court examined the role of scientific evidence relating to driver reaction time in the context of liability apportionment. The case of WALTER dealt with an accident in which the Plaintiff was struck by the Defendant’s motorcycle as he jaywalked across a street near a secondary school.

After largely dismissing evidence purporting to reconstruct the impact some eight years after the accident, the Court held that “of interest, however, and relevant to the assessment of negligence more generally, are the categories of drivers’ states of alertness when measuring perception-response time” (at para. 27).  The Court looked at studies which categorized drivers into “alerted” and “unalerted” groups, and found based on the evidence that alerted drivers (defined as drivers who are expecting or ready for a hazard, although they may not know the precise form it will take) had a reaction time of 0.7 seconds, whereas unalerted drivers (those who are paying attention but not on notice of any untoward hazard) had a reaction time of over 1.0 seconds.

Court Finds No Faliure to Mitigate Where Reasonable Efforts Made

In the case of FURNESS V. GUEST, 2010 BCSC 974 (“FURNESS”), released on July 12, 2010, the Plaintiff was awarded $40,000 in non-pecuniary damages.

The Plaintiff was struck by a large tractor truck driven by the Defendant after stepping into a crosswalk while the “don’t walk” sign was flashing. Although the amount awarded was ultimately reduced due to contributory negligence, the Court also had to decide whether it was appropriate to reduce the award for a failure to mitigate.

The Defendant alleged that the Plaintiff failed to do the home exercises recommended by his physiotherapist in order to rehabilitate the quadriceps muscles in his right leg. However, the Court noted the fact that the Plaintiff suffered from a “serious pre-existing condition of ankylosing spondylosis and a permanent partial disability in one of his shoulders from a previous injury” (at para. 66). These pre-existing conditions would prove important to the Court’s consideration of any failure to mitigate.

Facebook Photographs Considered at Trial

In the case CIKOJEVIC V. TIMM, 2010 BCSC 800 (“CIKOJEVIC”), released June 8, 2010, the Court considered the evidentiary role of photographs which were downloaded from the Plaintiff’s Facebook page.

The cause of action in CIKOJEVIC arose out of a mild traumatic brain injury and soft tissue injuries suffered in a motor vehicle accident in August 2002. The Plaintiff, who had just turned 17 at the time, had her head thrown “into the windshield hard enough to star it”.

The Defendant in this case entered into evidence a “large” binder of photographs obtained through the Plaintiff’s Facebook page. These photographs were intended to establish that the Plaintiff’s neck and back injuries were not as severe as claimed. The Court devoted multiple paragraphs to an analysis of these photographs under the heading “Facebook Photographs and Surveillance Videos”.

Court Awards $8000 For an “In-Trust” Claim For Services Rendered by Family Members

In EGGLESTON V. WATSON, 2010 BCSC 890, a judgement released on June 24, 2010, the Court considered whether it was appropriate to make an “in-trust” award for services rendered by the Plaintiff’s wife and daughter.  The Plaintiff in this case was seriously injured when struck by an intoxicated driver as he walked along the shoulder of a road.

The Court considered the services rendered by the Plaintiff’s family members at para. 220:

There is no doubt that both Mrs. Eggleston and Ms. Palfi devoted significant amounts of time and energy to caring for Mr. Eggleston while he was unable to look after himself due to the physical injuries he suffered in the collision, the debilitating pain he continued to suffer for many months thereafter, and the cognitive difficulties that have plagued his recovery.

Plaintiff Awarded $80,000 or Soft Tissue Injuries to Neck and Shoulder

The case of FENNELL V. HIEBERT, 2010 BCSC 824 was released on June 11, 2010, and deals with injuries sustained by a plaintiff on January 30, 1998, when she was ten years old.

The plaintiff’s family was driving in a van together when they were rear-ended, causing their vehicle to careen into a roadside ditch. While the Court found that the plaintiff suffered mild to moderate soft tissue injuries to the neck and right shoulder, her symptoms only fully manifested once she became old enough to participate in strenuous physical activities, such as helping her father by lifting hay bales. Based on the combination of the injuries’ “permanence” and the mitigating fact that they would become apparent in only select situations of physical exertion, the Court awarded $45,000 in non-pecuniary damages.

Defendant’s Appeal of $80,000 Damage Award Dismissed – Romanchych V. Vallianatos

The Plaintiff was awarded $80,000 for loss of earning capacity by the trial judge due to injuries suffered in a motor vehicle accident which occurred on July 4, 2006.  The Plaintiff suffered neck and shoulder injuries with associated headaches, as well as some subsequent jaw pain.

The Plaintiff missed two days of work after the accident, however she had some difficulties at work because of ongoing pain.

Plaintiff’s Jury Award of $12,451,000 Not Set Aside by Judge – Ciolli V. Galley

This matter proceeded to a six day jury trial which resulted in jury verdict of $12,451,000.00 in October 2009.

The Defendants sought an order from the trial judge that the jury verdict should be rejected and a mistrial be declared.  The trial judge refused to agree to the Defendants’ application.  The judge concluded that the matters before her were better dealt with on appeal.

Plaintiff’s Slip-and-Fall Award Upheld on Appeal – Fingerhut V. Longwood Station LTD.

This appeal related to a decision of the trial judge which allowed the Plaintiff’s claim for a slip and fall.  Mr. Fingerhut fell while crossing a speed bump in a shopping centre parking lot.  He fell when he tripped over a gap between the speed bumps which he did not see.  The court found that this gap between the speed bumps created a trap and that it fell below the required standard of care necessary in the circumstances.

Liability Finding Upheld on Appeal – Slaughter V. Sluys

The appeal of this matter related to a determination of liability at trial.  The trial decision resulted in the defendant being found 80% liable for the motor vehicle accident in question.

The details of the accident are that the Plaintiff was driving up a hill between 12 and 22 km/hour over the speed limit.  The Defendant was turning left on a yellow light in front of the path of the Plaintiff.  The Plaintiff did not slow down upon seeing the light at the intersection turn yellow.

PLAINTIFF AWARDED $67,150.49 FOR SOFT TISSUE INJURIES TO NECK, BACK, AND KNEE – DONNELLY V. DURHAM

This matter relates to a motor vehicle accident which took place on December 27, 2005.  The Plaintiff was rear-ended and her vehicle suffered $10,000 in damage.  The Plaintiff claimed to have suffered soft tissue injuries to her neck and back, as well as a right knee injury.

The defence argued that the Plaintiff had not proved her right knee injury was related to the accident.  The Plaintiff was successful in proving that her knee injury was related to the accident as her doctor’s medical evidence was preferred to that of the Defendant’s doctor.

Plaintiff Awarded $156,820 For Chronic Neck Pain – Szymanski V. Morin

The Plaintiff in this case was involved in a motor vehicle accident on December 7, 2004.  He was rear-ended by the Defendant.  Liability was not at issue in the proceedings.  The Plaintiff was still suffering neck pain at the time of the trial.  The judge described the Plaintiff’s neck pain as being chronic.

The Plaintiff made a claim for loss of housekeeping capacity.  This was denied by the court.  The judge found that the amount awarded for non-pecuniary damages reflected the change in the Plaintiff’s overall lifestyle, including his ability to perform household chores.

The Plaintiff was awarded $60,000 for loss of future earning capacity.  This was despite the fact that he was continuing to work installing hardwood floors at the time of the accident.

Speeding Plaintiff Not Liable For Accident – Burgess V. Fisher and Fisher V. Carol

These matters relate to the assessment of liability for a motor vehicle accident.

Ms. Fisher was driving her vehicle in Vernon when a collision ensued with a vehicle being driven by Mr. Carol.  Ms. Fisher was driving on a through street with the right of way.  Mr. Carol left a stop sign to cross the through street Ms. Fisher was travelling on when the collision occurred.  Mr. Carol argued that because Ms. Fisher was speeding, there should be a finding of 35-40% liability against her.