Nearly 16 years after Angelika Knapp was injured in a rollover on the Top of The World Highway, a Yukon Supreme Court judge has ruled in her favour.

He has found that the lawyer who negotiated her personal injury settlement in the matter was negligent in reaching the original settlement that saw her receive a lump sum of $125,000.

Justice Ron Veale handed down the decision last Thursday.

It involves a total of $268,000 in damages – with Knapp’s former lawyer James O’Neill and the company he worked for, James H. Brown Professional Corp. – to pay after deducting the original $125,000 payment to Knapp.

The $268,000 ruling includes general damages worth $80,000, special damages worth $1,000, loss of wages totalling $57,450, loss of future earnings totalling $70,000, the cost of care into the future amounting to $50,000 and housekeeping costs worth $10,000.

In his judgment, Veale stated: “At the outset, I should say that the facts I have found provide no support for the proposition that Mr. O’Neill was acting on Ms. Knapp’s informed instructions to settle her claim early.

“Ms. Knapp was completely unaware that further file development would have likely resulted in an enhanced settlement at a later date.

“On the contrary, I have found that:

1. Mr. O’Neill never provided Ms. Knapp with any evaluation of the heads of damage;

2. He never provided her with advice on the development of a claim for loss of capacity to earn income because he essentially thought her claim under this head was tenuous;

3. He did not provide her with an opinion on the seatbelt defence and the expert opinion that could be obtained;

4. He never provided an opinion on the merits of proceeding to trial versus the settlement on the table at mediation.”

Throughout the judgment, Veale recalled the events leading to the original settlement going back to the rollover.

Knapp was in the sleeper of a transport truck when it went into a ditch off the Top of the World Highway and rolled on Sept. 28, 1999.

There was no seatbelt or restraining apparatus in the truck and she was trapped there for about two hours before being taken by ambulance to the nursing station in Dawson City.

Knapp suffered a broken vertebrae and used a back brace for about two months along with being prescribed medication.

She submitted a proof of claim to Zurich Insurance, which insured the truck that was being driven, in October that year.

As planned, she moved to Europe (though was delayed) in November, where she had lined up four to five months of work.

“Ms. Knapp’s planned employment with the Swiss income tax authority was delayed due to her injuries,” Veale wrote.

“She did not commence work until December 1999 and worked only part-time in December 1999 and in January and February 2000. She returned to full-time employment in March.”

Her job with the tax authority was extended until she left the job in September when she received approval to come to Canada as a permanent resident.

Physiotherapy treatments for her injuries continued while she was in Austria.

After returning to the Yukon, X-rays taken in 2001 found further degenerative changes on the spine with Knapp’s doctor ordering that she could not return to work unit she saw an orthopedic specialist.

While she waited to see the specialist, she was also treated by a chiropractor.

Around the same time, she retained O’Neill to represent her in her personal injury claim.

Mediation between Zurich Insurance and O’Neill concluded in the original settlement.

In his decision, Veale cited case law in noting the duty of care lawyers owe their clients.

They must be skillful and careful, advise their clients on all matters relevant to their retainer, protect the interests of their client, carry out instructions by all proper means, consult their clients on all questions of doubt which don’t fall within express or implied discretion, and keep their clients informed.

Veale then went into detail on the process that led to mediation with Zurich Insurance and the settlement, pointing to a letter between the lawyer and insurance company.

“Mr. O’Neill did not have any instruction from Ms. Knapp to send this letter and he did not provide her with a copy,” Veale stated in his decision.

“Mr. O’Neill had not received an internal opinion on damages or the seatbelt issue as of January 17, 2002. Mr. O’Neill did not, at any time in his retainer, send a letter or memorandum to Ms. Knapp setting out heads of damages, ranges of the dollar values, or overall value of the claim.

“He did not advise her in writing of items that might reduce her claim such as the seatbelt defence, and the amount of the reduction.”

While that letter included medical reports, it did not state the nature of her injury, degree of pain and the impact it was having on her life and ability to work.

“It did not indicate that her disability was permanent and that her reduced work capacity would be permanent if she was treated without surgery. It did not refer to any case law supporting the value of the heads of damage,” the decision stated.

Further correspondence from O’Neill to Knapp did not include certain details of negotiations and did not alert her to the potential of “the seatbelt issue” coming up.

The seatbelt issue refers to the argument that injuries would have been lessened or negated had a seatbelt been worn.

“There was no pleading of the seatbelt defence and the defendant has not presented any evidence that had Ms. Knapp been wearing a seatbelt her injuries would have been lessened or prevented,” Veale noted. “This is sufficient to dismiss the seatbelt defense.”

The judge did not accept O’Neill’s argument that he had been instructed to resolve the claim as quickly as possible in August of 2002.

“It may have been his intention, but his own notes do not indicate any urgency on Ms. Knapp’s part until the meeting of Oct. 21, 2002, in preparation for the mediation on Oct. 22,” Veale wrote.

“At this trial, Ms. Knapp denied she felt any urgency in August 2002.”

Mediation efforts continued in the matter until the settlement agreement was reached in 2002, though Knapp said she had expressed her unhappiness with the lump sum she received.

Based on the evidence, Veale noted in his findings that Knapp was pressured into agreeing to the original settlement and discussions O’Neill had with her before mediation did not include “the heads of damage, the range of damages and an estimate of the overall value of the claim.”

Veale then made the ruling reaching the $268,000 based on evidence heard over a seven-day trial held this past winter.