ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for May, 2013

Reviewing Discovery Transcripts No Reason to Exclude Expert Report

May 31st, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing whether an expert report should be excluded because the expert reviewed the examination for discovery transcripts of the parties prior to authoring the report.  In short the answer is no.

In this week’s case (Friebel v. Omelchenko) the Plaintiff objected to the admissibility of two defence reports arguing that “it is improper to provide an expert with examination for discovery transcripts and then leave the expert to draw his or her own conclusions as to which facts should be used to support the opinion“.  Madam Justice Ker rejected this submission finding this practice in and of itself does not render the report inadmissible.  In reaching this conclusion the Court provided the following reasons:

[22]         A review of Dr. Sobey’s reports does not give rise to any of the concerns underlying the previous criticism of the practice of allowing experts to review examination for discovery evidence.

[23]         Dr. Sobey was provided with a set of factual assumptions. Those factual assumptions are set out in detail in his report and where further assumptions have been drawn from a review of the documentary evidence those assumptions and their source have been indicated. For instance, at times, Dr. Sobey makes explicit reference to those assumptions and one example can be found at p. 13 of his July 19, 2013 report where in answering question five, he states, “I have been asked to assume that Dr. Omelchenko was available by telephone contact”.

[24]         Moreover, where Dr. Sobey did make factual assumptions from the documentary information provided to him, those assumptions are also clearly set out. As an example, see p. 10 of Dr. Sobey’s July 19 report where, in answering question two, he states:

Review of Dr. Omelchenko’s chart revealed that he obtained the drinking history, evaluated the Mr. Friebel [sic] for current symptoms of withdrawal, and documented the period since Mr. Friebel’s last drink. Dr. Omelchenko’s chart did not comment on whether Mr. Friebel was using other mood altering drugs. I note from the documents and specifically the PharmaNet profile that Mr. Friebel had been prescribed the sedative medication, Zopiclone…

[25]         When read as a whole, Dr. Sobey’s reports leave no doubt as to the factual assumptions underlying his opinion. As such, the case is distinguishable from Sebastian, supra, and the trier of fact is able to properly evaluate and discern whether the factual assumptions have been proven in evidence at trial and what weight should be given to Dr. Sobey’s opinion.

[26]         The plaintiff’s application to have the reports of Dr. Sobey excluded on the basis that he reviewed transcripts from examination for discovery is dismissed.


$80,000 Non-Pecuniary Assessment for TFC Tear Reqiring Surgery

May 30th, 2013

Adding to this site’s archives of non-pecuniary judgments for wrist injuries, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TFC tear.

In this week’s case (Burtwell v. McCarrrey) the Plaintiff was injured in a 2009 rear end collision.  She sustained a TFC tear which required surgical intervention. In addition to this she suffered from various soft tissue injuries which continued to post problems at the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher provided the following reasons:

[42]         I am satisfied that the plaintiff has proved that she suffered the following injuries as a result of the accident of January 20, 2009: (1) TFCC tear in the right wrist and aggravation of arthritis in the right CMC joint; (2) strain and tendonitis in the right shoulder; (3) soft tissue injuries to the neck and upper back; and (4) some depression and anxiety…

[51]         In summary, the TFCC tear caused considerable pain but was substantially resolved within 18 months of the accident, leaving an ongoing loss of strength and mild restriction in flexion; the CMC joint arthritis continues to be painful, will likely progress, and limits the use of the right hand; the shoulder injury also caused considerable pain for over three years, was significantly resolved by May 2012 and there is a good possibility for a more complete recovery by about January 2014 (four years post-accident); the neck and back pain resolved within four months and continues to flare up but will likely improve once Ms. Burtwell engages in a reconditioning program; and the depression is well controlled with medication and is likely to improve with additional counselling, after which medication may no longer be necessary…

[57]         It is always difficult to apply the facts of one case to another, as no two cases are really alike. In general, the awards at the $90,000 to $100,000 level were for injuries that had more serious long term effects than the injuries I have found Ms. Burtwell to have suffered, and the awards at the lower level were for similar injuries that had less impact. In my view, an appropriate award for non-pecuniary damages in this case, taking into account Ms. Burtwell’s pre-existing conditions, is $80,000.


Can a Liability Admission Reached by Agreement Be Judicially Set Aside?

May 29th, 2013

The BC Court of Appeal had an opportunity to address this issue and the short answer is yes.

In this week’s case (Goundar v. Nguyen) the Plaintiff was injured in a multi-vehicle collision. The Plaintiff sued two motorists and ICBC initially denied fault on behalf of both.  As the lawsuit progressed the Defendant’s lawyer ‘inadvertently’ agreed to admit liability on behalf of one Defendant in exchange for a discontinuance against the second Defendant.  This deal was agreed to  and an amended Response was filed.  Subsequently a Court order was obtained setting aside the admission of liability accepting that it was agreed to inadvertently by defence counsel.

The Plaintiff appealed arguing the liability agreement superseded the Court’s jurisdiction to set aside the admission.  The BC Court of Appeal disagreed and held that the Court retained the discretion to set the admission aside.  In reaching this conclusion the Court provided the following reasons:

[26]         I have already concluded that Rule 7-7(5) applies to withdrawing an admission even if it arose from an agreement, and determined that the agreement in issue in this case does not purport to attempt to oust the application of the Supreme Court Civil Rules and, in particular, the rule governing the withdrawal of an admission made in a pleading.  The fact of the agreement and the conduct of the parties relying on it is a factor that can, to the extent necessary, be taken into account in the balancing of prejudice as part of answering the ultimate question whether the interests of justice require permitting the admission to be withdrawn.

[27]         In the result, I am satisfied that the chambers judge adopted the correct test in deciding the issue before her.

[28]         Allowing the withdrawal of an admission is a discretionary matter.  Deference is owed to the chambers judge, unless the judge erred in principle in the exercise of her discretion.  Here I see no such error.  The judge found there to be a triable issue.  She concluded that the admission had been made inadvertently.  She balanced any prejudice arising from the proposed withdrawal of the admission.  She addressed the extent to which a prejudice could be compensated by costs.  I would not interfere with the exercise of the chambers judge’s discretion.


“The special place of confidentiality in the physician-patient relationship” Discussed by BC Court of Appeal

May 28th, 2013

In reasons for judgement released this week the BC Court of Appeal discussed physician patient confidentiality and the limited basis for disrupting this.

In this week’s case (Logan v. Hong) the Plaintiff was advancing a class action for damages on behalf of  “all persons who were injected with Dermalive in Canada and who thereafter developed granulomas in the area injected with Dermalive.”   The Plaintiff proposed to notify the class members by direct mail.   Mr. Justice Sewell agreed this was appropriate and ordered various physicians to provide the information concerning these patients to counsel for the plaintiff.

The Court of Appeal overturned this order finding it would unduly interfere with doctor/patient confidentiality.  In doing so the BC Court of Appeal provided the following reasons:

[11]         Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship…

[13]         The special place of confidentiality in the physician-patient relationship is of long standing. In Halls v. Mitchell, [1928] S.C.R. 125, the Supreme Court of Canada commented upon the duty of secrecy owed to a patient, affirming that the patient’s right of confidentiality is superseded only by issues of paramount importance. Mr. Justice Duff, for the majority, described this principle at 136:

We are not required, for the purposes of this appeal, to attempt to state with any sort of precision the limits of the obligation of secrecy which rests upon the medical practitioner in relation to professional secrets acquired by him in the course of his practice. Nobody would dispute that a secret so acquired is the secret of the patient, and, normally, is under his control, and not under that of the doctor. Prima facie, the patient has the right to require that the secret shall not be divulged; and that right is absolute, unless there is some paramount reason which overrides it. Such reasons may arise, no doubt, from the existence of facts which bring into play overpowering considerations connected with public justice; and there may be cases in which reasons connected with the safety of individuals or of the public, physical or moral, would be sufficiently cogent to supersede or qualify the obligations prima facie imposed by the confidential relation.

                                                                                    [Emphasis added.]

[14]         And, at 138:

It is, perhaps, not easy to exaggerate the value attached by the community as a whole to the existence of a competently trained and honourable medical profession; and it is just as important that patients, in consulting a physician, shall feel that they may impart the facts touching their bodily health, without fear that their confidence may be abused to their disadvantage. …

                                                                                    [Emphasis added.]

[15]         More recently, the Supreme Court of Canada, referring to Halls, restated the significance of confidentiality to the physician-patient relationship in McInerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415, discussing at 148 a patient’s right to access to medical records:

When a patient approaches a physician for health care, he or she discloses sensitive information concerning personal aspects of his or her life. The patient may also bring into the relationship information relating to work done by other medical professionals. The policy statement of the Canadian Medical Association cited earlier indicates that a physician cannot obtain access to this information without the patient’s consent or a court order. Thus, at least in part, medical records contain information about the patient revealed by the patient, and information that is acquired and recorded on behalf of the patient. Of primary significance is the fact that the records consist of information that is highly private and personal to the individual. It is information that goes to the personal integrity and autonomy of the patient. As counsel for the respondent put it in oral argument: “[The respondent] wanted access to information on her body, the body of Mrs. MacDonald.” In R. v. Dyment, [1988] 2 S.C.R. 417, at p. 429, I noted that such information remains in a fundamental sense one’s own, for the individual to communicate or retain as he or she sees fit. Support for this view can be found in Halls v. Mitchell, [1928] S.C.R. 125, at p. 136. There Duff J. held that professional secrets acquired from a patient by a physician in the course of his or her practice are the patient’s secrets and, normally, are under the patient’s control. In sum, an individual may decide to make personal information available to others to obtain certain benefits such as medical advice and treatment. Nevertheless, as stated in the report of the Task Force on Privacy and Computers (1972), at p. 14, he or she has a “basic and continuing interest in what happens to this information, and in controlling access to it.”

                                                                                    [Emphasis added.]

[16]         Whether referred to as secrecy, personal autonomy, confidentiality, or privacy, the patient’s interest in protecting information of his or her medical treatment is reflected in the Code of Ethics of the Canadian Medical Association under the heading Fundamental Responsibilities:

Privacy and Confidentiality

31. Protect the personal heath information of your patients.

35. Disclose your patients’ personal health information to third parties only with their consent, or as provided for by law, such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases take all reasonable steps to inform the patients that the usual requirements for confidentiality will be breached…

[25]         I conclude that, giving full weight to the principle of privacy and confidentiality inherent in the physician-patient relationship, the limited circumstances that call for breaching the patients’ privacy are not present here.


Faded Warning Sign Leads to Liability for Trip and Fall

May 27th, 2013

UPDATE – June 3, 2014 – the BC Court of Appeal overturned the below decision and dismissed the claim finding the faded warning sign, if negligent, was not causative of the fall

________________________________

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing the adequacy of a warning sign in an occupier’s liability lawsuit.

In last week’s case (Simmons v. Yeager Properties Inc.) the Defendant owned a bakery in Chemainus, BC.  Outside the bakery was a concrete landing and a wooden patio deck.  There was a 2-4 inch height difference between these surfaces.  The Defendant marked this with paint and also with a sign that read “watch your step please“.  The sign faded over tie with the words ‘watch‘ and ‘step‘ becoming ‘quite faded and difficult to see‘.

The Plaintiff tripped and fell in this area and sued for damages.  Although the Plaintiff was found mostly at fault for her own injuries, the Defendant was held 25% responsible for allowing the sign to fade.  In so finding Madam Justice Fisher provided the following reasons:

[37]         In my opinion, the presence of white paint demarcating the patio step was not a sufficient warning, as the patio step was quite different in nature from the both the front and back stairs, and it was also sloping along its edge so that its height varied from two to four inches. In addition, with a patio table and chairs in front of it, the entire painted edge may not have been visible to customers approaching from the back stairs as the plaintiff did. As the defendants must have considered, it was necessary to specifically alert customers to the presence of this step with warning signs. Here, the warning sign that was most visible to the plaintiff was ineffective due to wear and tear.

[38]         The plaintiff says that the measures taken by the defendants after this incident, which were easily done and inexpensive, show that the previous measures were insufficient to make the premises reasonably safe. As with evidence of prior safe use, evidence of what is done after the fact is also a factor to consider in assessing whether the area at the time of the incident was reasonably safe. After the fact conduct is not an admission of negligence, but it may establish that measures were taken which converted an unsafe area into a reasonably safe one, and it may also establish the ease or difficulty with which a risk may have been avoided: see Cahoon at para. 21; O’Leary v Rupert, 2010 BCSC 240 at paras. 47-48.

[39]         In re-painting the edges of all stairs and the patio step in yellow paint, and replacing the red, black and white warning signs with yellow and black signs, the defendants enhanced the safety of the premises. However, other than replacing the faded warning sign, I do not consider that these changes show the previous measures to have been insufficient to alert customers to the change in level at the patio step.

[40]         I find that the ineffective warning sign is evidence of a prima facie breach of the Occupiers Liability Act. In these circumstances, the defendants may refute the breach by leading evidence that they had put into place a reasonable system of inspection and maintenance that was being followed at the time of the accident: Newsham at para. 131, citing Atkins v. Jim Pattison Industries Ltd. (1998), 61 BCLR (3d) 183; and Davis v Kin’s Farm Market (Lynn Valley), 2010 BCSC 677.

[41]         Ms. Laughlin’s evidence was that the outdoor sign needed to be replaced every six to eight months due to fading. She did not have a record of when she replaced the sign but she was at the bakery almost every day and would prepare a new sign when needed. Given how faded the sign was on the date of this incident, I do not consider her inspection and maintenance to be sufficient. It was obvious that the outdoor sign needed to be replaced.

[42]         Accordingly, I find that the plaintiff has proved on a balance of probabilities that by failing to maintain the outdoor warning sign, the defendants failed to take reasonable care to ensure the exterior area leading to the entrance of the bakery was reasonably safe.


“The Long Tradition of Judicial Copying” Discussed by the Supreme Court of Canada

May 24th, 2013

In reinstating a successful damages award, the Supreme Court of Canada had the opportunity to discuss if and when it is ok for a trial judge to copy a lawyer’s submissions in their reasons for judgement.

In today’s case (Cojocaru v. British Columbia Women’s Hospital and Health Centre) the infant Plaintiff suffered brain injury during birth at BC’s Women’s Hospital and Health Care Centre.  He successfully sued for malpractice and was awarded damages for his past and future care needs and other losses.  The trial judgement “reproduced large portions of the submissions of the plaintiffs.“.  The Court of Appeal overturned the judgement finding this judicial “copying” displaced ‘the presumption of judicial integrity and impartiality’.,

The Supreme Court of Canada disagreed and reinstated the damages awarded at trial (although differed in who the liable parties were allowing the cross appeals of some of the defendants).  In doing so Canada’s highest Court provided the following reasons discussing “the long tradition of judicial copying“.

[10]                          This was a complex case involving many issues. The trial judgment, rendered some time after a lengthy trial, consisted of 368 paragraphs.  Only 47 were predominantly in the judge’s own words; the balance of 321 paragraphs was copied from the plaintiffs’ submissions.  This raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions.

[11]                          The question before us is whether a trial judge’s decision should be set aside because his reasons incorporate large portions of material prepared by others, in this case the plaintiffs…

[35]                          The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied.  Avoiding this impression is a good reason for discouraging extensive copying.  But it is not the copying per se that renders the process of judgment-writing unfair.  A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially.  No one could reasonably contend that the process has failed in such a case.

[36]                          To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged.  But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity.  This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision…

[49]                          In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside.  However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

[50]                          This does not negate the fact that, as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law.  The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them.  As the cases illustrate, the importance of this may vary with the nature of the case.  In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial.  By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words.  The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal.  

 


Possibility of Jail Not a “Negative Contingency” When Assessing Diminished Earning Capacity

May 24th, 2013

This week the BC Court of Appeal provided reasons explaining that it is not appropriate for a judge or jury to reduce damages for diminished earning capacity when there is a possibility the Plaintiff will be incarcerated in the future.

In this week’s case (Albert v. Politano) the Plaintiff was seeking substantial damages for a collision caused injury which impeded him in his usual occupation.  Prior to his injury trial the Plaintiff was charged with a criminal offence which he was disputing.  The Defendant argued that the jury could consider the possibility of conviction and incarceration in assessing injury caused diminished earning capacity.  In finding this inappropriate the BC Court of Appeal provided the following comments:

 42]        I do not agree the judge erred as alleged. I reach this conclusion for three reasons. First, the judge was not asked to give the instruction now advocated, notwithstanding the opportunity given to counsel to comment on the proposed instructions. Second, there was no evidence upon which a jury could assess the value of such a contingency. Third, and most important, I do not consider it would have been appropriate for the jury to reduce the future damage award for the negative contingency of a possible future jail sentence, in the circumstances before the Court. Mr. Albert stood in the courts, and in the community, as innocent until proven guilty. Even if proven guilty, there was no certainty that he would receive a jail sentence. In my view, it would have been entirely speculative for the jury to reduce the damage award to reflect the chance that he might be convicted on the outstanding charges. This is unlike the case relied upon by the appellants, British Columbia v. Zastowny, [2008] 1 S.C.R. 27, (2008) S.C.C. 4, wherein the Supreme Court of Canada, on appeal from this court, affirmed the appropriateness of a deduction in damages to take account of a period of incarceration that was established as a fact at the trial.


Two Jaywalking Injury Claims Dismissed by the BC Supreme Court

May 23rd, 2013

Adding to this site’s archived case summaries of collisions invovling jaywalking pedestrians, two separate cases involving such a collision recently were dismissed at trial by the BC Supreme Court.

In the first case (Talbot v. Kijanowska) the Plaintiff, who emerged from an alleyway, was attempting to cross a street without the right of way.  The Defendant motorist did not see him in time to take evasive action.  The Plaintiff’s claim was ultimately dismissed with Mr. Justice Greyell providing the following reasons:

[34]         It is acknowledged by Mr. Talbot that he was not crossing the street at a crosswalk, marked or unmarked, at the time he struck or was struck by Ms. Kijanowska’s vehicle. Even if he had been crossing a crosswalk, there is a common law duty on a person in Mr. Talbot’s position to take care of his own safety upon leaving the curb: Kovacova v. Ray, [1998] B.C.J. No. 3309, 48 M.V.R. (3d) 56 (S.C.) at para. 17….

38]         The headlights Mr. Talbot saw upon emerging from the alleyway and upon looking to his right must have come from Ms. Kijanowska’s approaching vehicle. There were no other vehicles on the roadway at the time. Mr. Talbot was unable to explain how or why he did not see Ms. Kijanowska’s vehicle as it approached him after having first observed it about one block away. Mr. Talbot was not able to refute the defence’s theory that he had walked or run into the side of Ms. Kijanowska’s vehicle.

[39]         The only conclusion that I can draw from these unfortunate circumstances is that Mr. Talbot was simply not paying attention or having regard to his own safety when he left the alleyway and walked onto Trutch. He may very well have been distracted by listening to music on his headphones, which were observed lying on the ground next to him.

Accordingly, on the facts as I find them I cannot attribute negligence to the defendant. I conclude the accident of March 27, 2010 was caused solely by the negligence of Mr. Talbot in failing to take care of his own safety by keeping a proper lookout as he left the alleyway and walked onto Trutch and into Ms. Kijanowska’s vehicle.

[40]         The plaintiff’s action is dismissed. In the ordinary course the defendant would be entitled to costs. If there are matters of which I am unaware counsel may speak to the issue.

In the second case, (Pinsent v. Brown) the Plaintiff pedestrian was injured when attempting to cross a street in Vancouver in dark and rainy conditions.  She was not crossing at an intersection or in a crosswalk and “emerged onto the roadway from between parked cars”.  In finding the Plaintiff solely at fault for the resulting collision Madam Justice Ross provided the following reasons:

[32]         The applicable statutory provisions are ss. 179, 180 and 181 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318,…

[34]         The mere fact that the driver did not see the pedestrian before striking him, is not in itself, sufficient to establish that the driver kept an inadequate lookout: Plett v. ICBC (1987), 12 B.C.L.R. (2d) 336 (C.A.). The driver is required to operate his vehicle so that he will be able to avoid striking a pedestrian who is crossing his path in a reasonable manner: Funk v. Carter, 2004 BCSC 866….

[52]         Ms. Brown testified that she was familiar with the area and not distracted. She did not see Ms. Pinsent until Ms. Pinsent stepped out from behind the parked car and stepped into her path. I find that Ms. Brown was exercising reasonable care and attention. I find further that Ms. Pinsent was not visible to Ms. Brown until it was too late to avoid the accident.

[53]         In all of the circumstances I have concluded that the plaintiff has not established that Ms. Brown was travelling at an excessive rate of speed or that she failed to exercise the care and attention of a reasonably prudent driver.

[54]         The accident occurred while Ms. Pinsent was jaywalking. Accordingly, Ms. Brown had the right of way. Ms. Pinsent has failed to establish that after Ms. Brown became aware, or by the exercise of reasonable care should have become aware, of Ms. Pinsent’s own disregard of the law, Ms. Brown had a sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself.

[55]         I find that Ms. Brown was not negligent in the manner she operated her vehicle. Ms. Pinsent was the sole cause of this unfortunate accident. In the result the action is dismissed.


BC Court of Appeal Upholds Canadian National Boxing Champions $1,000,000 ICBC Hand Injury Case

May 22nd, 2013

(Cross-Published at the Canadian MMA Law Blog)

Last year a Vancouver Jury awarded professional boxer  Jegbefumere ‘Bone’ Albert  just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career.  He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic hand injury which flared with training/fighting.  The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.

ICBC appealed arguing numerous errors at the trial level.  In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal dismissed ICBC’s appeal and in doing so the Court provided the following comments addressing the lost opportunity of the plaintiff –

[50]        This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.

[51]        Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.

[52]        I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.

[53]        I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.

I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.

 


$60,000 Non-Pecuniary Assessment For Chronic Moderate Soft Tissue Injury

May 22nd, 2013

Adding to this site’s soft tissue injury damage archives, reasons for judgement were released earlier this year by the BC Supreme Court, New Westminster Registry, addressing damages for chronic moderate soft tissue injuries imposed on a pre-existing condition.

In the recent case (Graydon v. Harris) the 65 year old plaintiff was injured when his vehicle was struck by a large industrial garbage truck.  The Defendant was found fully at fault for the collision.  The Plaintiff suffered from pre-existing neck pain and headaches due to a degenerating spine.  The Collision resulted in soft tissue injuries which aggravated these issues.  In assessing non-pecuniary damages at $60,000 Mr. Justice Weatherill provided the following reasons:

 

[67]         Based upon the evidence before me, I find that the plaintiff is a very stoic and hardworking man who has suffered a moderate soft tissue injury to his neck, lower back and shoulders as a result of the October 25, 2007 accident.  I also find that, at the time of the October 25, 2007 accident, the plaintiff was suffering from pre-existing neck pain, headaches and a degenerative condition of the cervical spine.  That is why Dr. Koelink was continuing to prescribe Tylenol 3 for him.  The soft tissue injuries suffered during the October 25, 2007 accident exacerbated his pre-existing condition.

[68]         Despite some inconsistencies in his evidence, I find that the plaintiff’s injuries have had and will have a lasting effect on his work life and, to a lesser degree, on his home and recreational life.  He continues to be able to work but not without pain and discomfort.  He continues to have headaches which flare up when he is welding. 

[69]         He is able to travel both for vacation and work without adverse effects with the exception of occasional numbness in his left leg after sitting for prolonged periods of time.  However, as Dr. Craig testified, that discomfort can be eased by changing position.

[70]         The plaintiff was suffering from pain, headaches and a degenerative condition of the cervical spine well before the October 25, 2007 accident.  In my view, there is at least a 25% chance that the plaintiff’s pre-existing condition would have interfered with his work and other activities had the October 25, 2007 accident not occurred.

[71]         After considering all of the plaintiff’s circumstances, the principles set out in Stapley and the cases provided by counsel, and after applying a 25% contingency in respect of the plaintiff’s pre-existing condition, I find that an award of $60,000 for non-pecuniary damages is appropriate.