Personal Injury Tragedy with No Winners

BY IAN MULGREW, VANCOUVER SUN MAY 10, 2010


Christina Marie MacEachern can't appreciate the $5 million-plus B.C. Supreme Court judgment she won last week because of the catastrophic brain injury she sustained when hit by the back of a tractor trailer.

Nor can she understand how her lawsuit raises concerns about personal injury litigation in the province.

It is a heart-wrenching tragedy.

A 27-year-old unemployed drug addict living in a tent city, MacEachern was struck by the truck as she and a handful of friends travelled along the side of King George Highway in Surrey near the All Weather Products Roofing Store.

It was about 12:30 in the afternoon on Sept. 12, 2005, and a pickup was parked at an angle outside the store with its rear end extending onto the shoulder of the highway.

MacEachern was coming along the shoulder riding a bike facing traffic. As she went around the rear of the parked pickup she was hammered by the end of the trailer being hauled by John Gardiner Rennie, of Canadian National Transportation. Ltd.

She suffered a horrible head injury.

Rennie didn't even know he had hit MacEachern until the next morning when police tracked him down from witness descriptions.

MacEachern was a typical happy-go-lucky teen who struggled in high school, became pregnant at 16 and saw her life sadly begin a downward spiral. She fell into heroin and cocaine abuse and by 2004 was on a methadone maintenance program.

In 2005, she was still using and homeless.

MacEachern could not testify nor be examined for discovery because of she is not a competent witness -- she can remember little of the accident and is now mentally a child.

She was in a coma after the accident and her road to recovery has been exceedingly difficult.

The court watched a moving video of her life today at Bear Creek Lodge. She has a private room in the locked facility. Her dad visits regularly and speaks to her on the phone every night.

He brought the lawsuit on her behalf alleging Rennie was negligent, the pickup was negligently parked and All Weather was negligent in creating a dangerous parking situation.

All denied liability and said it was MacEachern's own fault and that she was likely high at the time.

In a book-length 75,000-word ruling, Justice William Ehrcke concluded Rennie was primarily responsible for not taking enough care in his driving.

"[He] had a duty to provide enough room for pedestrians and cyclists to proceed safely along the shoulder," the justice wrote.

"In failing to keep a proper lookout, and in failing to take that simple evasive measure, his conduct fell below the standard of care required of a prudent professional driver of a large tractor-trailer rig. He did not fulfil his duty of care to the plaintiff. He was therefore negligent."

Justice Ehrcke added, however, that MacEachern should not have made the decision to proceed around the back of the parked pickup when she could see the tractor-trailer coming towards her.

She was not impaired at the time, the justice said, but: "She should have stopped and waited until the northbound traffic ... had cleared sufficiently for her to have a safe path. ... By making the careless decision to proceed ... the plaintiff contributed to her own injuries."

The other defendants were blameless.

The evidence in the case was problematic in that the eyewitnesses could not agree on significant details such as whether MacEachern was riding or walking. The question of liability was not easily resolved.

After that, setting quantum raised other thorny concerns -- how much in damages should be awarded since MacEachern requires care for the rest of her life?

Still, it's unbelievable this case required a trial lasting more than 100 days.

The legal costs here are staggering simply in terms of hearing-day fees at $600 per diem.

More than 75 witnesses testified and scores of reports, documents and other exhibits were filed. Talk about your duelling witnesses -- engineers, doctors, bike specialists, experts in aerodynamics.

Did this situation really require all that?

Honestly -- 100 days of trial over a case like this?

Colour me skeptical.

imulgrew@vancouversun.com

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