Court awards $4.8M US for Victoria waterfront fall that injured teen

BC Supreme Court rules Crown 35 per cent to blame for David Mackey's fall

A U.S. man has been awarded nearly $5 million US for a fall he suffered while a teen visiting Victoria in 2007.

An American man has been awarded nearly $1.7 million US by the B.C. Supreme Court for a nine-metre fall on the Victoria waterfront in 2007 that left him with a permanent brain injury.

David Mackey, then 17, was part of the Paradise Valley High School choir visiting from Phoenix, Arizona and seeing sights in Vancouver and Victoria when the accident occurred.

On March 31, 2007, while out with 23 other students and four chaperones, he climbed onto a concrete baluster at a pedestrian plaza on Wharf Street at Government Street, and swung around a six-foot-tall lamp post attached to the baluster.

The post was corroded to the core and came loose as Mackey swung around it, and he fell two storeys onto the concrete walkway below. He remained in a coma for a week, suffered a traumatic brain injury, a broken left arm, nine of his teeth were broken, and he had cuts and bruises all over his body. He spent five weeks in hospital and 15 months in an intensive rehabilitation program.

Mackey’s father, James, sued the Provincial Capital Commission, a provincial Crown corporation that at the time owned and managed the plaza, including the rail and lamp post.

Following a 34-day trial that included evidence from 32 witnesses, Justice George Macintosh found David Mackey 65 per cent to blame for the accident, with the Crown responsible for the remaining 35 per cent, or nearly $1.7 million US of the overall $4.8 million US judgement.

Macintosh found that the Crown had neglected the maintenance of the lamp post—aside from an annual paint job—and that the post on the railing was “its own accident waiting to happen.”

Evidence suggested the post could have been pushed over by a force of only 12.5 pounds.

“The lamp post had never been inspected or maintained to see that it was intact. The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it,” Macintosh wrote. “But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened.”

Of the $4.82 million US judgement, $4.5 million was for Mackey’s loss of future income. Mackey’s lawyers successfully argued that he planned to become an orthopedic surgeon, but his brain injury derailed that possibility.

Mackey, who has 18 siblings, was raised in the Mormon faith which places a strong emphasis on education. His oldest brother is a doctor, his oldest sister recently wrote her bar admission exam, and he has other siblings who are doctors or dentists, and one is an engineer, Justice Macintosh wrote.

While Mackey is now married and has two children, is able to drive a car and can play the piano again, and his IQ is not diminished, that only paints part of the picture, Justice Macintosh wrote.

“But none of those achievements, substantial though they are, overcome the reality that David is now very immature, and unable to work in jobs requiring significant executive function, intellectual dexterity, and full emotional stability,” the court judgement states.