Stevens Virgin’s Jason Newton is awarded judgment for his trial acumen!

Jason Newton of litigation law firm, Stevens Virgin, obtained a dismissal of five actions brought by one plaintiff in the recent decision of Greenway-Brown v. Kyung et al, 2018 BCSC 287  

The 36 year old plaintiff was in five motor vehicle accidents between 2014 and 2017 and claimed to be injured in all of them.  The six-day trial involved lengthy testimony and a high volume of evidence.  It was complicated by the fact that the other parties in two of the accidents denied that they were at fault.

In one of these accidents,  the plaintiff rear-ended the other vehicle.  The court found that she was at fault, and dismissed the action.  The other was a “hit and run.”  These claims require plaintiff’s to take steps to ascertain the identity of the other driver.  Because the plaintiff failed to take those steps, the court also dismissed this action.

The three other accidents occurred in various parking lots.   The defendant drivers all admitted that they were at fault.  In each case, the damage to the plaintiff’s vehicle was no more than a slight scuffing of the bumper.  It was  difficult to determine from the photographic evidence if there was any damage at all.

The judge recognized that a plaintiff can be injured even when the damage to a vehicle is slight, but noted, “…common sense dictates that the smaller the impact, the greater the probability that little or no damage was suffered.” [para 7.]

The plaintiff relied on her own evidence, along with evidence from several medical experts, to prove that she was injured in the three parking lot episodes.  The defence attacked her credibility and the judge agreed that she completely lacked credibility.  He concluded that, unless her testimony was supported by objective and reliable evidence, he could give it  little to no weight  [para 21].  Because the medical opinions relied almost exclusively on the plaintiff’s own subjective reporting, he found that it was tainted by her lack of credibility.  As a result, he did not award her any damages for the physical injuries she claimed to have suffered.

Although the judge found that it was unlikely that the plaintiff was physically injured in the parking lot incidents, he also had to deal with her claim that they caused or exacerbated a mental injury, which she said she was highly susceptible to.  People who have a pre-existing susceptibility to injury are known as “thin skull” plaintiffs.

A foreseeable mental injury is compensable in the same was that physical injury is but the defence argued that in Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, the Supreme Court of Canada ruled that if the plaintiff is not a person of ordinary fortitude, any mental injury they suffer is not reasonably foreseeable and therefore, not compensable. To put it another way, a person of ordinary fortitude can cope with the irritation and inconvenience of having their bumper scuffed in a parking lot.  The plaintiff’s exceptional sensitivity made any injury she might have developed as a result of the episodes not reasonably foreseeable.  The judge accepted this argument, and, in what may end up being a significant ruling for defendants, stated at paragraph 52:

Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well. Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis.

Congratulations to Mr. Newton for a decisive and potentially significant win.



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