On December 14, 2009 Ms. Rhodes was driving to work on a cold morning in a westbound direction on 80th Avenue in Surrey. As she was approaching the intersection at 192nd Street, which had a four-way stop, and travelling between 25 – 35 km in a 60 km an hour zone, she applied her brakes and slid into the Mountain View Market concrete pedestal on which gasoline pumps were located.

Just prior to the accident several other drivers had passed through the intersection without crashing. One driver did skid but managed to retain control.

Watch the case summary below:

 

The City of Surrey had distributed anti-icing brine on the road but a refreeze occurred because the brine was overwhelmed by additional snowfall. The city had failed to follow up with plowing and salting to prevent the refreeze.

Ms. Rhodes injuries were primarily psychiatric disorders including somatic system disorder, posttraumatic stress disorder, anxiety disorder and depression. Additionally, she suffered injuries to her vestibular system and balance mechanism. As a result of the injuries she was unable to continue to work.

Ms. Rhodes’ personal injury lawyer tried the case in the British Columbia Supreme Court with a judge and a jury. In British Columbia parties to a lawsuit that involve motor vehicle injuries have an option to have the case tried by a judge alone or a judge and the jury. The trial took 22 days.

The jury awarded $100,000 for pain and suffering, past income loss $305,000, future income loss [from the start of the trial going forward] $1,085,000, special damages [mostly out-of-pocket expenses for medical treatment] $45,000, cost of future medical care $1,955,000, reimbursement for Ministry of health medical costs $36,600, and an in trust claim for medical care provided by a loved one, $50,000 – for a total of $3,576,600.

However, the jury found that Ms. Rhodes was 75% responsible for the accident [with the City of Surrey being 25% responsible] and reduced her damages [that is compensation] by a further 75% for failing to mitigate her damages. That is, for failing to follow medical advice that probably would have reduced the consequences of her injuries.

After taking into account these two 75% reductions Ms. Rhodes was awarded by the jury a total of $223,537.50

Ms. Rhodes appealed the jury verdict to the British Columbia Court of Appeal arguing that the jury erred [i.e. made a mistake] in finding her 75% responsible for the accident [i.e. contributory negligence] and further for finding that her damages should be reduced by 75% for failing to mitigate.

The British Columbia Court of Appeal found that there was no error with respect to the jury’s finding of contributory negligence. That is, the Court of Appeal found that the jury did not make an error in finding Ms. Rhodes 75% responsible for the accident and the City of Surrey 25% responsible.

However, the Court of Appeal said the court below did make an error in finding that Ms. Rhodes failed to mitigate her damages. The Court of Appeal stated there was insufficient evidence on this point. Ms. Rhodes did everything reasonable to try to get better.

Therefore, after taking into account the Court of Appeal’s determination, Ms. Rhodes will be entitled in total to approximately $1 million..

See: Rhodes v Surrey (City), 2018 BCCA 281: http://www.courts.gov.bc.ca/jdb-txt/ca/18/02/2018BCCA0281.htm

Case summary provided by Michael Hoogbruin, Vancouver personal injury lawyer.

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