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.

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 GoFundMe has been launched in memory of an eight-year-old boy who drowned at a Hotel Zed pool in Victoria on March 24. (Jane Andema/GoFundMe)
GoFundMe started in memory of 8-year-old boy who died at Hotel Zed pool

Child drowned after wandering off to the pool alone

The family of Iris McNeil, shown here with members of her family, has launched a petition to deny parole for the man who murdered McNeil in 1997. (Family photo)
Family fights killer’s release from Metchosin institution

Shortreed serving an indeterminate sentence at William Head Institution

This image shows northbound traffic on Highway 17 looking to turn west onto Keating Cross Road (far right top corner), crossing the southbound lane on Highway 17. A new flyover overpass promises to ease delays and improve safety, but the Saanich Peninsula Chamber of Commerce is calling for revisions in joining other critics. (Screencap/Ministry of Transportation and Infrastructure)
Saanich Peninsula Chamber of Commerce calls for revisions to Central Saanich flyover overpass

Chamber deems current proposal necessary but insufficient in calling for full movement interchange

The Capital Regional Hospital District has approved awarding a tender to QM Environmental for the demolition and hazardous materials disposal of the Oak Bay Lodge. (Black Press Media File)
Winning bidder approved for Oak Bay Lodge demolition

Capital Regional Hospital District board approves $4.266 million budget for project

A driver stopped by Saanich police following a road rage incident on April 15 was found to be impaired, in violation of a license restriction and in a damaged vehicle. They received a 90-day driving prohibition and a 30-day vehicle impound. (Saanich Police Traffic Safety Unit/Twitter)
Driver stopped on Pat Bay Highway after road rage reports fails breathalyzer test: police

Several witnesses reported driver to Saanich police, school officer intercepted

Rainbow trouts thrashing with life as they’re about to be transferred to the largest lake of their lives, even though it’s pretty small. These rainbows have a blue tinge because they matched the blue of their hatchery pen, but soon they’ll take on the green-browns of their new home at Lookout Lake. (Zoe Ducklow/News Staff)
VIDEO: Lookout Lake stocked with hatchery trout to delight of a seniors fishing club

The Cherish Trout Scouts made plans to come back fishing soon

The plane blasted through an airport fence and down a hill, before stopping before a cement barrier on Highway 5A, right in front of a school bus. Photo submitted.
Student pilot crashes plane onto Highway 5A almost hitting school bus

Aircraft hit pavement right in front of school bus

Eight-year-old Piper and her family were raising money to help Guinevere, the bearded dragon, get a gynecological surgery. Sadly, the reptile didn’t survive the procedure. (Jackee Sullivan/Special to Langley Advance Times)
Lizard fails to survive surgery, GoFundMe dollars help Langley family offset medical bills

Guinevere, a pet bearded dragon, underwent an ovariectomy on Tuesday

B.C. Premier John Horgan wears a protective face mask to help prevent the spread of COVID-19. THE CANADIAN PRESS/Jonathan Hayward
B.C. Premier John Horgan booked to get AstraZeneca shot Friday

‘Let’s show all British Columbians that the best vaccine is the one that’s available to you now,’ he said

Doses of the Moderna COVID‑19 vaccine in a freezer trailer, to be transported to Canada during the COVID-19 pandemic. THE CANADIAN PRESS/Nathan Denette
Pfizer to increase vaccine deliveries in Canada as Moderna supply slashed

Moderna plans to ship 650,000 doses of its vaccine to Canada by the end of the month, instead of the expected 1.2 million

Dr. Bonnie Henry speaks about the province’s COVID-19 vaccine plans during a news conference at the legislature in Victoria. THE CANADIAN PRESS/Chad Hipolito
P.1 variant likely highest in B.C. due to more testing for it: Dr. Henry

Overall, just under 60% of new daily cases in the province involve variants

(Black Press Media file photo)
POLL: Do you have a plan in place in the event of a tsunami?

Tsunamis have claimed the lives of more than 250,000 people between 1998… Continue reading

Anyone with information on any of these individuals is asked to call 1-800-222-TIPS (8477) or visit the website victoriacrimestoppers.ca for more information.
Greater Victoria Crime Stoppers wanted list for the week of April 13

Greater Victoria Crime Stoppers is seeking the public’s help in locating the… Continue reading

The District of Sooke will continue to flower with Communities in Bloom. (Pixabay)
Sooke will bud but not bloom in provincial competition

Council scales back participation in Communities in Bloom

Most Read