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.

 

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A bear similar to this black bear is believed responsible for killing a llama in Saanich on Oct. 19. (Black Press Media file photo)
Saanich residents warned to watch livestock after bear kills llama

Officers with Conservation, Saanich police could not track the bear they feel may not fear humans

A 23-foot sailboat that broke free from its anchor was smashed against Cattle Point during the early October south-easterly storms. (Ron Geezin Photo)
Storm-smashed boat pulled off rocks of Cattle Point in Oak Bay

Sailboat a casualty of last week’s big storms

With local MLA Adam Olsen looking on, BC Greens leader Sonia Furstenau said a Green government would convert BC Ferries into a Crown corporation Wolf Depner/News Staff)
Green leader Sonia Furstenau promises to convert BC Ferries back into Crown corporation

Promise comes Monday afternoon with five days left in campaign

More than 250 riders took part in the fifth annual Tripleshot CrossFondo, which riders across parts of the Saanich Peninsula, including this field near Sluggett Farms. (Wolf Depner/News Staff)
Tripleshot CrossFondo rides across Saanich Peninsula

More than 250 cyclists took part in mystery-course race

City of Victoria crews will soon be gathering up fallen leaves in neighbourhoods and city parks. First up on the pickup list are the James Bay, Fairfield, Rockland, Gonzales and South Jubilee neighbourhoods, starting Oct. 19. (Courtesy City of Victoria)
Victoria city leaf pickup a sure sign of fall

Residential pickup begins Oct. 19, drop-offs can happen anytime at city yard

Advance polls are open from Oct. 15 to 21 with election day on Oct. 24. (Black Press Media file photo)
A passer-by walks past a COVID-19 testing clinic in Montreal, Friday, Oct. 16, 2020. THE CANADIAN PRESS/Ryan Remiorz
Canada ‘yet to see’ deaths due to recent COVID surge as cases hit 200,000

Much of the increase in case numbers can be attributed to Ontario and Quebec

Police confirm human remains were found in a recycling bin in Vancouver on Oct. 18, 2020. (Black Press Media file photo)
Human remains found in recycling bin floating near Vancouver beach

Police asking nearby residents to see if their recycling bin has gone missing

(File photo)
RCMP: Two men face charges in reported Parksville fatal hit-and-run

Investigation into man’s death began in August of 2019

B.C. Liberal leader Andrew Wilkinson visits a North Vancouver daycare to announce his party’s election promises for child care, Oct. 9, 2020. (B.C. Liberal Party video)
B.C. parties pitch costly child care programs in pandemic

B.C. Liberals say they’ll deliver on NDP’s $10-a-day promise for lower-income families

Steven Michael Bacon pleaded not guilty to a charge of first-degree murder of Nanaimo teen Makayla Chang. (Photos submitted)
Accused pleads not guilty in Nanaimo teen’s 2017 murder

Steven Bacon appeared in Nanaimo court Monday via video link from Thunder Bay

Voting station at Tzeachten Hall in the riding of Chilliwack-Kent on the first day of advance voting in the provincial election on Oct. 15, 2020. (Paul Henderson/ Chilliwack Progress)
B.C. VOTES 2020: 380,000 British Columbians head to polls in first 4 days of advance voting

Some of highest voter turnout so far has been seen on Vancouver Island and in Shuswap

Grant and Barbara Howse, in quarantine in Invermere. Mike Turner photo
Denied entry into U.S., Kootenay couple still forced to quarantine for 2 weeks

The rules around crossing the U.S. border led to a bizarre situation for an Invermere couple

Most Read