Court finds lawyer guilty of negligence

A Yukon Supreme Court judge has ordered an Alberta lawyer and his employer to pay over $200,000 to his former client, after the court found him liable for negligent representation.

A Yukon Supreme Court judge has ordered an Alberta lawyer and his employer to pay over $200,000 to his former client, after the court found him liable for negligent representation.

Angelika Knapp, an Austrian citizen who moved to Canada in 1999, was injured when the fuel truck her partner was driving entered a ditch and rolled over on the Top of the World Highway in September 1999.

She was in the sleeper of the truck, which did not have a seatbelt.

The accident hurt her back. A spinal surgeon she consulted in Vancouver diagnosed the disability as permanent, and concluded her ability to work would also be permanently reduced unless she underwent surgery.

In 2001 she retained James O’Neill to file a personal injury claim against her partner’s insurance company, Zurich Insurance.

They prepared for trial but opted instead for mediation, a common practice in such cases. After several offers and counter-offers, Knapp accepted a payment of $125,000 plus costs.

That’s when the problems started.

A month after signing the mediation final release, Knapp told O’Neill she wanted to back out of the agreement. At trial, she said she didn’t understand mediation was final and binding.

In 2004 she filed a lawsuit against O’Neill alleging negligent representation.

The trial was scheduled for 2010 but adjourned because of health reasons at her request.

In his June 4 ruling, Judge Ron Veale found O’Neill didn’t do his research properly, by not looking for any Yukon or British Columbia precedents and not instructing law students that worked on the case that the claim came from the Yukon.

O’Neill didn’t prepare Knapp correctly for the mediation hearing, Veale found, listing a number of tasks that a prudent lawyer would have done, such as making sure the client was comfortable with the plans to proceeds to a mediation.

When Knapp told O’Neill she wasn’t happy with the $125,000 offer, he told her if she didn’t take that offer she could see a reduction in the claim because she wasn’t wearing a seatbelt, that she could be ordered to pay for the trial cost, and finally that he wouldn’t represent her.

“It is clear that she did so under great pressure from her lawyer,” noted judge Veale about Knapp signing the final release. However, the judge concluded that Knapp must have understood the finality of the agreement.

O’Neill also didn’t take into account Knapp’s reduced ability to earn a living when making the claim. “He failed to address the loss of income earning capacity, which even at a modest amount on an annual basis could be significant over Ms. Knapp’s lifetime,” wrote Justice Veale.

When the insurance company raised what is known as the seatbelt defense – the possibility to reduce the claim because the plaintiff wasn’t wearing a seatbelt – O’Neill didn’t challenge them. The judge noted he was ready to agree to a 25 per cent cut in the claim, without asking them to prove it was negligent not to have worn a seatbelt in the sleeper and that wearing one would have lessened the injuries.

Knapp had provided him with photographs of the interior of the tractor cab, which could have been used by an expert, noted Veale, but O’Neill didn’t examine them, only considering them for trial.

He also didn’t inform Knapp of developments in the claims, and the risks of an early settlement.

Finally, the first offer O’Neill made to the insurance company was way below the normal range.

“The mediation, having started at an inordinately low offer, could not produce a fair settlement,” concluded Justice Veale.

He also ruled that Eric Dufresne, Knapp’s partner who was driving the fuel truck, was liable because he didn’t put enough chains on his truck tires despite slushy conditions on the road that day.

Dufresne lost traction on his wheels as he was approaching a right-hand corner in a descent, resulting in the accident.

Veale awarded $268,450 in damages to Knapp, breaking it to down to $80,000 for general damages, $1,000 for special damages,$57,450 for past wage loss, $70,000 for loss of future earning capacity, $50,000 for cost of future care and $10,000 for cost of housekeeping.

On top of that, defendants will have to pay interest for nine years, which corresponds to the time between when the claim was started and the date of the first trial. The original $125,000 is to be deducted from that amount.

Calls to O’Neill were not returned by press time. James H. Brown and Associates, O’Neill’s employer, refused to comment.

“As the matter is before the courts, we are not in a position to comment on the case,” wrote Rick Mallett in an email.

Knapp could not be reached by press time.

Contact Pierre Chauvin at

pierre.chauvin@yukon-news.com

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