Judge rules against woman’s claim that two marina falls were related
He finds liability in just one incident and awards fraction of damages sought
A B.C. Supreme Court judge has found a West Vancouver woman’s claim that two marina falls were related was not correct and has awarded her half the amount she wanted in damages for the first accident.
The details were included in a B.C. Supreme Court decision handed down last week following a trial in January and February, after Linda Powell sued West Vancouver’s Eagle Harbour Yacht Club for damages following two separate falls a year apart.
Powell, a former Eagle Harbour Yacht Club member, fell into the water in June 2013 after she returned to the yacht club from an afternoon sail. She stepped on a board between two docks which collapsed. Powell, 65 at the time, did not hit her head or upper body as she fell in, the judgment noted.
In May 2014, Powell fell near a different West Vancouver marina, fracturing her wrist. She said the second fall was caused by a sharp pain in her back, which she claimed was caused by injuries from her fall from the dock the year before. Eagle Harbour Yacht Club admitted liability for Powell’s first fall, but denied responsibility for the second, and the judge agreed.
Much of the trial focused on Powell’s credibility, and in his written reasons for judgment delivered last week, B.C. Supreme Court Justice G. Bruce Butler said he agreed with the defendants that Powell’s evidence was not reliable.
Gary Wharton, the lawyer who represented the yacht club, said Monday that if a court finds a plaintiff to be unreliable, it doesn’t necessarily mean they’re lying, and a person’s version of events can be distorted by their feelings and experiences.
“No one’s happy here,” Wharton said. “We had this woman who did have this relatively minor injury, and she felt it was more than that, and the judge said it wasn’t. But the yacht club, they didn’t want any of this. There’s no happy ending to this.”
Reached by phone Monday, Powell referred questions to her lawyer, Arsen Krekovic, who said his client was “disappointed” the court didn’t agree her first and second fall were linked, “but she understands a court has to weigh both sides.”
“The court didn’t agree with her version of events, and that was always a risk going into this trial,” Krekovic said.
In his reasons for judgment, the judge outlined Powell’s activities in the months following her fall from the yacht club’s dock. He noted that Powell has not been able to ski or play tennis since then, and claimed a “significant loss of enjoyment of life.”
She did not seek medical attention until six weeks after the fall, and the month after that, she and her husband John flew to Italy for a three-week vacation at a home they own there.
“The plaintiff reported discomfort because of the extended time in an economy class seat. She recalls trying to lie in the aisle of the plane and not being permitted to do so,” the judge wrote. “She was not able to take part in all of the activities in Italy that she had hoped to do. She was unable to paint the shutters or clean the floor. Mr. Powell had to do much of the maintenance work by himself.”
In late 2013 the Powells resigned from the club, with John Powell’s letter of resignation saying they were leaving “because of the way Eagle Harbour treated the plaintiff after she fell into the water.”
The Powells, originally from England, moved to North Vancouver in 2008, the judgment says.
Two months after quitting the club, the Powells visited California’s wine country, the judge noted, during which time she was “mobile and functioning,” adding it seemed “very unlikely the plaintiff suffered an unexpected back spasm that could cause her to fall and break her wrist.”
Powell had submitted that even if there was no causal link between the first and second fall, the appropriate award for non-pecuniary damages would be $55,000, while the defendants said a fair award would be $12,500. The judge’s decision landed closer to the defendants’ position, awarding Powell $22,500 in non-pecuniary damages and $1,045 for physiotherapy expenses.