BURST
A B.C. woman awarded $907,000 in a lawsuit against 7-Eleven after she broke her ankle in its Smithers parking lot will have to go back to court after the B.C. Appeal Court ruled the trial judge had erred in ruling her depression was caused solely by the accident.
Crystal Tommy was granted $175,000 for pain and suffering and almost $500,000 for future wage loss based “expressly” on Tommy’s mental health injuries being caused by the 2018 ankle injury and a later, related back injury, according to the Appeal Court ruling.
B.C. Supreme Court Justice Emily Burke ordered 7-Eleven to pay Tommy the $907,000 award, which included compensation for her “mental distress, depression and unhappiness” after hearing from her, friends and family how much she had changed compared to before the accident.
7-Eleven appealed the judgment on a number of issues, including that the award was “inordinately high,” but Justice Geoffrey Gomery, writing for the unanimous three-judge panel, said the primary issue “is whether the judge misapplied the law in attributing these mental health injuries” to the 7-Eleven accident.
The trial heard how Tommy went from an outgoing person with a sense of humour who loved her physically demanding job at a nursery, to someone who was sad, depressed and unable to work or socialize, according to the appeal judgment.
Gomery said the judge linked Tommy’s mental injuries to her physical injuries, not being able to work at a job she loved and the financial stress of that.
But he said the loss of her job in late 2022 “was not a consequence of the ankle injury in 2018. She had carried on working for two years after she suffered the ankle injury.”
She lost her job because of other injuries and ailments she suffered in late 2022, which included a hernia that resulted from a car accident in which she suffered shoulder, elbow and abdominal injuries unrelated to her 2018 ankle and back injuries. And in 2023, she had surgery to remove a cyst, which led to another hernia, the judgment said.
Neither Tommy nor the judge linked those ailments to the ankle and back injuries and Burke didn’t award her compensation for the time she was and is expected to be off work, from late 2022 to spring 2026, for the later ailments, he said.
Gomery wrote the judge erred in compensating Tommy for her mental health difficulties without “finding that the ankle and back injuries contributed to the mental distress.”
He ruled that the mental health issues were “divisible,” meaning they could have also could have been caused by Tommy’s other ailments and injuries and 7-Eleven wouldn’t be entirely liable for any possible compensation. But the trial judge erred by treating them as indivisible consequences of the original ankle injury, meaning only the 2018 injury caused the depression, according to the appeal judge.
But without determining the ankle and back injuries “materially contributed” to the mental health issues, “it was not open to the judge to incorporate the mental health issues into her assessment of damages” against 7-Eleven, wrote Gomery.
Tommy’s lawyers argued the award was justified and in submissions said the deterioration of her mental health was not limited to comparing the time before the 2018 accident and at trial. They said she had been off work for more than eight weeks in 2018 and that social isolation affected her mood, as did reduced mobility and chronic pain from her ankle injury.
But Gomery said that ignores the judge’s use of the evidence in her judgment, which was based on Tommy’s lawyers’ questions about how she was feeling at trial compared to pre-2018 and how her friends and family saw changes during that time.