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Zacher v. Prescesky: B.C. Judge Awards Injured Pedestrian $2.1 Million


For B.C. pedestrians, getting hit by a car or truck is a major, life-altering event. Even in non-fatal pedestrian accidents, the victim may sustain a traumatic brain injury that can permanently affect his or her ability to work and live a normal life. This makes it all the more imperative for pedestrian accident victims to seek compensation from the negligent motorists via a personal injury lawsuit.

Halloween Accident Leaves B.C. Chef Unable to Work Again

Consider this recent decision, Zacher v. Prescesky, from the B.C. Supreme Court here in Vancouver. This tragic case began during the early morning hours of Halloween 2014. The plaintiff, a man then in his mid-20s, lived in Tsawwassen, a residential community located on the U.S.-Canadian border near Point Roberts.

The plaintiff was returning home from work. He travelled along 12th Avenue in Tsawwassen, which runs east-west and forms a T-shaped intersection with 52nd Street, which approached from the north. The plaintiff proceeded to cross over 52nd street in a marked crosswalk with the appropriate pedestrian signal. Unfortunately, as he made his crossing, the plaintiff was struck and injured by the defendant, who was attempting to make a left-hand turn from 12th Avenue onto 52nd street.

The plaintiff subsequently filed a personal injury lawsuit against the defendant. Before B.C. Supreme Court Justice Kenneth N. Affleck, the defence denied liability for the accident. Justice Affleck quickly disposed of that argument. In his April 4, 2019, judgment, which followed a trial conducted over the course of eight days this past January, the judge said the facts and the law were clearly on the plaintiff’s side with respect to liability.

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Under B.C. law, “once a pedestrian has safely entered a crosswalk, absent any overt negligence such as running or gesturing that could mislead motorists into thinking they may proceed safely, the pedestrian may assume that the motorists will yield the right of way and will share no responsibility if struck in the crosswalk.” Here, there was no evidence presented that the plaintiff acted unsafely or in any way contributed to the accident. The only point raised by the defence was that the plaintiff was “wearing dark clothing” and it was early in the morning, but Justice Affleck said that was irrelevant. The plaintiff proceeded in a crosswalk with a “walk” signal. He therefore had the right-of-way, irrespective of the clothes he happened to be wearing.

Loss of Future Earning Capacity

Having determined the defendant was 100% responsible for the accident, Justice Affleck then turned to the assessment of the plaintiff’s damages. Here, the judge reserved the largest portion of his award to compensate the plaintiff for his “loss of capacity to earn income in the future.” As noted earlier, the plaintiff was in his mid-20s when the accident he occurred. Indeed, he was only 30-years-old at the time of trial.

Prior to the accident, the plaintiff pursued a career as a chef. The judge noted the plaintiff started working in restaurants while in high school, and even worked in the kitchen of the B.C. lieutenant governor’s residence. Although the plaintiff briefly stopped working in kitchens following a 2013 bicycle accident (which caused a shoulder separation), by the time of the 2014 Halloween accident caused by the defendant, the plaintiff was back to working in a pub in Tsawwassen, where he earned $16 per hour while working towards full-time status.

Due to the injuries he sustained in the accident, the plaintiff’s doctors informed him it would not be possible for him to return to his work as a chef. Thereafter, the plaintiff worked part-time as a volunteer at a senior centre. But he has not been able to resume any sort of full-time, paid employment.

As Justice Affleck succinctly put it, the plaintiff’s “capacity to earn any income is essentially gone.” Given this, the judge assessed the plaintiff’s damages for loss of future income at $1.4 million. This is based on the assumption that but-for the accident, the plaintiff would have worked until the retirement age of 65 as a chef making approximately $41,000 in current dollars. The judge actually calculated total damages at $1.5 million, but deducted $100,000 under the belief the plaintiff was “determined” to try and earn some income during the remainder of his life.

Non-Pecuniary Damages

As for other categories of damages, Justice Affleck awarded the plaintiff $320,000 for the costs of his future medical care, $300,000 in non-pecuniary damages, $106,350 for the loss of income prior to trial, and $5,782. After rounding up, this led to a final award of $2,133,000

“Non-pecuniary damages” refers to the plaintiff’s pain and suffering and other intangible losses. Justice Affleck explained such damages do not necessarily reflect the severity of the injury itself, but rather its effect on the plaintiff’s overall condition and situation following the accident. B.C. judges therefore must examine a wide variety of factors when assessing non-pecuniary damages, including the plaintiff’s age, the “severity and duration” of his pain, and the overall impairment to his physical and mental abilities, as well as his social relationships.

Here, the judge said the plaintiff suffered “catastrophic” injuries. He was only 25 at the time of the accident and now faces a “bleak” prognosis for the rest of his life, including “a life of pain as well as physical and cognitive constraints.” The plaintiff can no longer use a car and is only able to walk short distances. He cannot engage in most physical activities and, based on witness testimony, is “now largely withdrawn from social contacts.”

Justice Affleck explained the approximate “upper limit” for non-pecuniary damages in B.C. law is $350,000. Given the severity of the plaintiff’s injuries here, the judge decided an award close to that limit was appropriate.

Contact Preszler Injury Lawyers Today if You Have Been Injured in a Vancouver Pedestrian Accident

Cases like this illustrate the importance of holding negligent motorists responsible for the damages they inflict on innocent pedestrians and their families. If you have been injured in an accident and need advice from an experienced Vancouver personal injury lawyer, call Preszler Injury Lawyers today to schedule a free, no-obligation consultation.

Source:

https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc500/2019bcsc500.html

 

 

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