subject: Canadian Lawyer Brain Damaged At Company Party Says It Was A Work Injury [print this page] Vicarious liability for employers may be under new scrutiny after a Canadian work injury case highlighted the importance of a company setting out the boundaries of its responsibilities, reports the Province.
Young up-and-coming Vancouver lawyer Michelle Danicek was dancing with a colleague, Jeremy Poole, at a post-company dinner party on the night of April 5th, 2001 when he lost his balance and fell into her. Miss Danicek also overbalanced and struck her head sharply on the floor of the Yaletown nightclub.
In the days following the accident, Miss Danicek experienced crippling, chronic headaches as well as nausea and vomiting and doctors diagnosed a minor traumatic brain injury. Furthermore, she began to suffer from asphasia, difficulty in remembering nouns, and she struggled with writing clearly.
She took temporary leave from work, but when she returned she was taking up to thirty painkiller tablets a day to ease her suffering. She was eventually forced to leave the firm in 2004.
Miss Danicek made a work injury claim against both her employer, Alexander Holburn Beaudin and Lang, and Mr Poole.
The judge, Stephen Kelleher awarded her $185,000 for pain and suffering, $21,500 in special damages, $48,000 in future care costs and $525,000 for the wages lost by her enforced stay at home.
He then awarded Miss Danicek a colossal $5.1 million in lost future earnings after several witnesses testified that she was an incredibly promising young lawyer who excelled at both handling existing clients and finding new ones, what is known as a 'rainmaker' in the business.
The size of this award, six million dollars in total, reflects both the lucrative nature of Miss Danicek's profession and her personal earning potential. It is believed that this award is the largest of its kind ever granted by the British Columbia Supreme Court.
The settlement was reached with Mr Poole who admitted liability. He himself is now said to be making a third-party claim from Lombard General Insurance, which insures Alexander Holborn, even though they have not apportioned blame to him.
The plot will thicken further in November when the trial enters a second phase to determine if Miss Danicek's employers are liable.
They will, argue, as only a law firm can, that their vicarious liability does not, and did not, extend to the party at which Miss Danicek was injured, since it occurred after a company dinner and was not officially sanctioned by them.
Miss Danicek is expected to argue that they, as hosts of the party, are still responsible. If she wins it could also have implications for Mr Poole's case.
Even though this is a Canadian case, its characteristics and the circumstances surrounding it seem quite similar to that of UK law, although it is perhaps unlikely that British judges would award such a high amount to a plaintiff. It would also be unlikely to have been awarded from an individual. How many people here would have six million dollars (three and a half million pounds) to give to a colleague if we were sued by them?
The question surrounding the employer's vicarious responsibility is the more interesting for us. If this had happened in the UK there would be a similar question mark over the line between official company dinner and informal party afterwards.
It is more likely that Miss Danicek would have just made a work injury claim from Alexander Holborn if the case had happened here. We will have to wait until the end of the second phase of the trial to see what the outcome will be.
by: Richard Craig
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