July 05, 2013 - 11:27 AM
LUMBY - A B.C. Supreme Court judge has deemed a young Lumby man entitled to nearly $2 million in damages after suffering brain and other injuries in a 2008 car crash.
Leighton McCluskey, 19 at the time, had caught a ride with his friend Brendan Desilets who was leaving a party at Harris Creek in Lumby around 11 p.m. on Thanksgiving weekend. The 1998 Dodge Ram had a broken speedometer and the tires were in poor condition. It was packed full with McCluskey, McCluskey's girlfriend, and four others in addition to Desilets.
An engineering report estimated Desilet was driving over 120 km/h in an 80 zone as he approached a bridge. The truck flipped off the road, tossing several occupants not wearing seatbelts out of the vehicle. A 17-year-old boy from Lavington was killed.
Desilets was charged with dangerous driving causing death but was acquitted in 2010 after a criminal trial. But last week a judge found he breached the duty of care he owed McCluskey, who suffered a total of 28 injuries, including permanent brain damage.
"Unfortunately, I am unable to find that the defendant took reasonable steps to avoid the accident," Steeves said in his decision on the matter. "He was speeding in a vehicle with poor tires and no speedometer. The very high speed, in relation to the posted limit, is especially critical...The fact that the vehicle left the road and the impact was of such force supports a conclusion that the defendant was speeding and lost control. In fact, he agreed in cross-examination that he made a mistake and lost control."
McCluskey's mother testified her son isn't the boy he used to be. She said he is forgetful, unable to learn as easily, and often gets lost.
"She compares the current situation to before the October 2008 accident when the plaintiff was active socially, he was working, he was playing sports and he was able to manage his life by himself," Steeves said. "Now her son is 23-years-old and he needs to live with his mother because he is not able to look after himself."
McCluskey had planned on doing an apprenticeship with a local cabinet maker but now "he is unable to assemble a simple chair without supervision and direction."
"He is, unfortunately, part of a small group (12-15 per cent) of people who, despite some improvement, have continuing symptoms of MTBI (Mild Traumatic Brain Injury)" Steeves said.
When he testified, McCluskey was unable to remember if he'd been wearing a seatbelt at the time of the accident. He said he had always been in the habit of wearing one. While the defense argued this made McCluskey contributorily negligent, Steeves said there was insufficient proof to say for certain he hadn't been wearing a seatbelt.
Steeves ruled McCluskey is entitled to $150,000 in past income losses, $10,517 in special damages, $200,000 in non-pecundiary damages, $1,526,460 in loss of future earning capacity, and $30,000 for in trust family care. The cost of future care has not yet been decided.
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News from © InfoTel News Ltd, 2013