Case Summary: Tommy vs. 7-Eleven Canada Inc., 2024 BCSC 1558
The Supreme Court of British Columbia recently provided their reasons for judgment in the case of Tommy vs. 7-Eleven Canada Inc., 2024 BCSC 1558. The court awarded this plaintiff $907,000 in damages. Preszler Injury Lawyers was counsel at trial.
In May 2018, the plaintiff, Crystal Tommy, tripped on a pothole at a 7-Eleven parking lot in the northwestern B.C. town of Smithers, resulting in a break to her ankle in three places. She was largely immobile with a cast and required the use of crutches and a wheelchair for several months. The injury caused trouble walking and a limp.
Unfortunately, Ms. Tommy suffered other injuries later, including a fall in December 2018 that she attributed to her ankle injury and ongoing pain from the 7-Eleven incident and balance problems. The defence strongly contested the case at trial on liability and argued the subsequent fall was not related to the initial injury.
Ms. Tommy grew up on the Witset First Nation in the northwest of British Columbia. Since graduating from high school, she worked at the Woodmere Nursery near Smithers. The job was physically demanding. However, Ms. Tommy loved the work and her colleagues. She was very active and enjoyed walking on local trails in her village. Due to her injuries, she was off work for several months. Walking caused pain and swelling in her ankle. She required a lot of assistance in her normal activities while she recovered, such as with grocery shopping, walking her dogs, and completing household chores.
She went off work completely in 2022 due to ongoing health issues and her inability to walk more than one block. Her mental health also deteriorated.
The occupier of the property where she first tripped in 2018, 7-Eleven, denied liability for Ms. Tommy’s accident. As a defendant, 7-Eleven further denied that Ms. Tommy’s ongoing injuries from the accident contributed to the subsequent fall. The convenience-store giant argued that even if liability could be established, all heads (or categories) of damage claimed were excessive or not made out on the evidence; the court disagreed.
Defendants Deny Liability
The defendants denied liability for the accident, asserting that 7-Eleven had a reasonable system in place to ensure safety standards at the property, including a safety course and a monthly site walk that was to be competed by employees. The defendants further argued that Ms. Tommy did not provide evidence of the depth of the depression or necessary details to create a causal link.
The court, however, agreed with Ms. Tommy’s evidence regarding the existence of the pothole:
“[36] … The fact is it was there and that Ms. Tommy tripped on it was established on the evidence.
“[37] Ms. Tommy’s testimony on her fall was not shaken on cross examination…”
The court found it was not apparent that a reasonable system of inspection and maintenance was in place at 7-Eleven. Even if this system was considered reasonable, there was no evidence this system was being followed at the time of Ms. Tommy’s accident.
The case is important because the pothole was fixed before it could be measured, meaning there was no exact evidence on the size of the hazard, something defendants often focus on in disputing liability.
Ultimately, 7-Eleven was found liable for Ms. Tommy’s accident and the ensuing injuries.
Valuing the Plaintiff’s Compensation
Non-Pecuniary Damage
Ms. Tommy sought damages for the ankle fracture, including persistent pain, stiffness, and swelling in her left ankle, pain in her hips, lower back, and mental health difficulties. She further sought damages for the December 2018 fall wherein she injured her back.
The defendant argued that the only compensable injury is Ms. Tommy’ s ankle injury. The defendant denied there was any evidence that Ms. Tommy injured her back in the December 2018 fall. Despite this lack of evidence, the court found that Ms. Tommy had, in fact, injured her back in the December 2018 fall.
The court found Ms. Tommy to be credible and accepted her evidence that her ongoing pain from the accident and the subsequent non-tortious events have seriously impacted her life. The court found that while some may consider Ms. Tommy’s limitations to be small, they have had a real profound impact on her world and directly impacted that part of it that sustained her, namely her workplace and social activities.
The court agreed that Ms. Tommy is a vulnerable individual, stemming from the difficulties she experienced in childhood and the realities of the adverse effect on her of her father’s attendance at residential school. The ankle injury Ms. Tommy sustained resulted in profound consequences, compared to an individual who is not vulnerable.
The court awarded Ms. Tommy $175,000 for her pain and suffering.
Future Loss of Income Earning Capacity
Ms. Tommy argued that her ongoing pain and mental health difficulties could give rise to a loss of capacity. Expert medical evidence supports the argument that Ms. Tommy is not capable of working full-time at her pre-accident job, given the physical demands of the job. She returned to work for a period out of financial necessity, but she required assistance from her colleagues and makeshift supports to accommodate her pain.
The defendant argued that Ms. Tommy had not made out her wage loss claim, both for past wage loss and a loss of earning capacity.
The court accepted that Ms. Tommy would continue working in her pre-accident role at Woodmere Nursery for as long as possible. The court found that Ms. Tommy’s ability to maintain physically demanding employment will be limited and her condition will worsen due to the ankle injury, pain, and mobility limitations.
The court awarded $494,082.05 under this head of damage.
In total, the court awarded the following damages:
- Non-pecuniary damages $175,000
- Future cost of care $17,000
- Past loss of housekeeping $ $39,000
- Future loss of housekeeping $171,863
- Future loss of income $494,000
- Special damages $500
- Total $907,363
Congratulations to our deserving client on this remarkable outcome. Cases such as this highlight the importance of fighting for your right to recover every dollar owed if you suffer a loss at the hands of another party and reaffirm that someone’s vulnerability needs to be taken into account when assessing damages.
Congratulations to counsel Tyler Dennis and Farzad Balandari on their win at trial.
