Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with the issue of vicarious liability following an assault.

In this week’s case, Van Hartevelt v. Grewal, 2012 BCSC 658, the Plaintiff was involved in a physical altercation with the Defendant R. Grewal.  While there were competing versions of what occurred Mr. Justice Savage found that this Defendant pummelled the Plaintiff "with his fists…sending him to the ground” then “kicked (the Plaintiff) forcefully in the ribs as he lay on the floor".

The Defendant was found liable and ordered to pay over $65,000 in damages including punitive damages.

The Defendant was the son of the owners of the Rani Lynn Apartments which is where the altercation took place. The Plaintiff was a tenant there. The Plaintiff also sued the owners arguing they ought to be found vicariously liable for the assault. Mr. Justice Savage agreed and found the owners jointly and severally liable (except for the punitive damage award). In doing so the Court provided the following reasons illustrating that vicarious liability can flow beyond a formal employer/employee relation:

[52] I accept Mr. G. Grewal’s evidence that he did not charge family members rent while they were living at the Randi Lynn. However, he did not charge rent to Mr. R. Grewal, and at other times other relatives living at the Randi Lynn on the expectation that they would perform services for him at the apartment…

[54] …As a family member receiving free rent Mr. R. Grewal was beholden to the Second Named Defendants and was expected to do their bidding at the Randi Lynn…

[64] While it is true that independent contractors will not generally attract such liability and that employees generally will, it is not the case that the employer/employee relationship is the only one that can attract vicarious liability…

[65] Therefore, the main considerations in the present case are whether the relationship was sufficiently close to justify the imposition of liability, whether the tort was sufficiently connected to the assigned tasks of the tortfeasor to be regarded as the materialization of the risks created by the enterprise, and whether the imposition of liability would satisfy the policy goals outlined in Bazley. I answer all of these questions in the affirmative.

[66] The reason that employers are often found to be vicariously liable whereas those hiring independent contractors are not is that in the former case, the employer has created the risk and is in the best position to mitigate it. Thus, it is both efficient and fair to impose vicarious liability. In the present case, although it was not a typical employment relationship, the Second Named Defendants created the risk associated with Mr. R. Grewal, were or should have been aware of the risk, and were in the best position to mitigate this risk.

[67] The Second Named Defendants were aware of the violent history of Mr. R. Grewal and were aware of the recent confrontation between Mr. R. Grewal and Mr. Van Hartevelt; a confrontation that arose in the context of Mr. R. Grewal’s role as an on-site owner representative. As such, the risk of violent confrontations initiated by Mr. R. Grewal was caused by the enterprise of the Second Named Defendants and they were in a unique position to mitigate this risk. They were specifically made aware of the risk by Mr. Van Hartevelt’s letter of July 12, 2006. The fact that the Second Named Defendants did not take steps to mitigate the risk renders them blameworthy.

[68] There is also the assertion, albeit made by Mrs. R. Grewal, that the ‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite. This was made in the presence of Mr. R. Grewal. Mr. R. Grewal, rather than correcting this misapprehension, schooled as he was in tenancy matters, remained and the events followed.

[69] In my opinion there is a sufficiently close relationship to justify the imposition of vicarious liability in this case.

Reposted with permission. The original post appeared on Erik Magraken's blog, www.bc-injury-law.com/blog, on May 9, 2012.

There is a scam making the rounds targeting personal injury lawyers that my colleagues should be aware of.  Here’s how it works…

1.  A potential client contacts you, tells you he/she was injured in a collision in your jurisdiction.

2.  The tort-feasor was uninsured.  They negotiated a settlement directly.

3.  The injuries are severe.  A medico-legal report is provided to corroborate this.

4.  The tort-feasor is now not paying.  The client needs to retain you to collect.

5.  After you agree to act the tort-feasor agrees to honour the settlement.

6.  The tort-feasor sends you a cheque which you deposit.

7.  The cheque looks legitimate and your bank tells you it is.

8.  The client is pleased.  He/She asks for their share after deducting your reasonable fee.

9.  You pay out, less your fee, oh so pleased with your lawyering skills…

10.  The cheque does not clear leaving you holding the bag.

11.  Worse yet, the retainer happened over the Internet.  You did not follow the ‘know your client rule’.  Your BC lawyer’s insurance also leaves you holding the bag

Remember, there’s no free lunch.  If it looks too good to be true it probably is.

The Law Society of BC has ample resources to assist and should be contacted when you suspect a scam is in the works.

Reposted with permission. The original post appeared on Erik Magraken's blog, www.bc-injury-law.com/blog, on April 19, 2012.

If two or more events cause a single “indivisible injury” a Defendant who in part contributes to the injury can be held accountable for the entire loss. This legal principle was concisely summarized in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week's case (Estable v. New) the Plaintiff was injured in a 2003 motor vehicle collision. She suffered previous and subsequent trauma. The Court found that while not the sole cause, the collision was a cause of the Plaintiff’s various soft tissue injuries. The Plaintiff was compensated for these and in doing so Madam Justice Gropper provided the following short and helpful summary of the law of indivisible injury compensation:

[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.

[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant. This was discussed in Bradley at para. 33:

[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to 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. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[emphasis in original]

[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court made the following findings with respect to her injuries:

[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.

[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him…

[77] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga…

[81] I assess Ms. Estable's non-pecuniary damages at $30,000.