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 October, 2018

$70,000 Non-Pecuniary Assessment After Sheriffs Negligently “Takedown” Courthouse Visitor

October 25th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, ordering Sheriff’s to pay just under $70,000 in total damages to a plaintiff who was injured when they were forcibly removing him from a BC courthouse.

In the recent case (Sweeney v. British Columbia) the Plaintiff was attending the Victoria Registry of the BC Supreme Court to file some papers pertaining to a Residential Tenancy matter.  Sheriff’s approached him and asked to search his backpack.  After some misunderstanding about his consent to do so he was forcibly removed.  In the process the Plaintiff was actively resisting in that “he was trying to pull his arm away from Acting Sergeant Kain’s hold on it because of the pain in his arm” and displayed “a negative attitude towards the authority of the sheriffs“.

A sheriff executed a takedown of the Plaintiff and the court found they were negligent in doing so.  The takedown caused various injuries including “a laceration to his forehead, a concussion, exacerbation of pre-existing injuries to his right arm and shoulder and a rotator cuff tear to his right shoulder.“.   The court assessed non-pecuniary damages for these injuries at $70,000 but reduced the award by 5% for contributory negligence on the part of the plaintiff.

In explaining why the sheriffs were negligent Madam Justice Matthews provided the following reasons:

[90]         I find that both sheriffs believed that Mr. Sweeney was trying to break free. I find that they were in a dangerous situation because they were at the top of two sets of cement stairs separated by a set of glass doors. While they both testify that they never lost control of Mr. Sweeney, they both testified that they were concerned that they would lose control and that would be dangerous to them. Acting Sergeant Kain was also concerned about the woman coming up the stairs.

[91]         I am mindful to not second guess the sheriffs given the dangerous situation they were in. However, I am of the view that they created this dangerous situation by marching towards the stairs notwithstanding the hazards the stairs presented and that Mr. Sweeney was struggling from the outset.

[92]         Both sheriffs decided to cease the escort and to execute maneuvers to maintain control over Mr. Sweeney. They decided this independently and made different decision about what to do to manage the situation.

[93]         The Sheriff Policy Manual requires the sheriffs to use the minimum amount of force necessary to gain control of a subject. I accept the opinion of Mr. Summerville, supported by the evidence of Acting Sergeant Kain, that putting Mr. Sweeney against the wall was far safer than a takedown in the circumstances given the stairs and a very hard ground surface onto which Mr. Sweeney was forcibly put down. A takedown was not, as the Sheriff Policy Manual requires, the minimum force necessary in the circumstances. I conclude that a takedown was not within the reasonable range of options available.

[94]         I find that the sheriffs both breached the standard of care in taking physical control of Mr. Sweeney at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. I conclude that they sheriffs breached the standard of care by failing to communicate after each of them decided to change course their course of action. I find that Deputy Sheriff Bergen breached the standard of care in executing a takedown.

[95]         The defendants do not dispute that the takedown caused injury to Mr. Sweeney. Accordingly, the plaintiff has established negligence against the sheriffs.


$105,000 Non-Pecuniary Assessment For Major Depression and Conversion Disorder With Seizures

October 23rd, 2018

Reasons for judgement were published today by the BC Supreme Court, Prince George Registry, assessing damages for chronic psychological injuries following a collision.

In today’s case (Chevalier v. Gray) the Plaintiff was involved in a 2014 collision.  It was a t-bone type impact and the Defendant accepted fault.

As a result of the crash the plaintiff suffered a major depressive disorder along with conversion disorder with accompanies seizures.  Prognosis for full recovery was poor and the injureis were partially disabling.  In assessing non-pecuniary damages at $105,000 Mr. Justice Tindale provided the following reasons:

[258]     In this case the plaintiff suffered musculoligamentous strains of the cervical spine as well as mild headaches, a mild strain of the thoracic area and a muscular strain of the lumbar spine. She also sustained a wrist injury.

[259]     The defendant had a duty of care to the plaintiff to take reasonable care to avoid causing her physical and mental injuries.

[260]     The plaintiff certainly had pre-existing vulnerabilities to her mental health. Dr. Tomita however opined that the MVA was a predominant cause of both her conversion disorder and major depression. Dr. Udamaga opined that the MVA was a predominant factor that precipitated a decline in her mental health leading to a diagnosis of conversion disorder.

[261]     The evidence discloses that the plaintiff thought her vehicle was on fire when she was trying to extricate her elderly mother from the vehicle. She developed a sense of guilt about causing her mother’s injuries and ultimate death even though she was not at fault for the MVA.

[262]     Both Dr. Tomita and Dr. Udamaga testified that it was unlikely that the plaintiff would have developed conversion disorder absent the MVA.

[263]     The evidence discloses that the effects of the mental injuries to the plaintiff have been pronounced, long-lasting and debilitating.

[264]     The evidence also discloses that symptoms of the conversion disorder in the form of the plaintiff’s legs twitching regularly and for a prolonged period of time and as Mr. Chevalier described her shivering as if she was cold started shortly after the MVA. These symptoms became very pronounced in September 2014.

[265]     Taking into account all the evidence on this case the MVA was a material contributing cause to the plaintiff’s physical injuries and to her psychological injuries. The plaintiff was involved in a serious motor vehicle accident where she was physically injured and witnessed her ailing mother being injured. It is reasonably foreseeable that the plaintiff would suffer psychological injury.

[266]     But for the MVA the plaintiff would not have received the physical injuries that she did as outlined by Dr. Laidlow and would not have developed a major depressive disorder and a conversion disorder with seizures…

[270]     Taking into account the plaintiff’s condition prior to the MVA, the plaintiff’s injuries and poor prognosis, the effects that her psychological injuries have had on her personal and work life and the case authorities provided by the plaintiff an appropriate award for non-pecuniary damages is $105,000.  This takes into account the real and substantive future possibilities, both positive and negative that could impact the plaintiff’s life.  In this case, it is primarily the negative possibilities caused by her pre-existing chronic pain and intermittent mood disorders that must be accounted for.


BC Court of Appeal – “Segregated” Non-Pecuniary Awards Should be Avoided

October 1st, 2018

Several years ago it was more common to see BC courts awarding damages for ‘diminished housekeeping capacity‘ as a stand alone head of damage in injury litigation.  More recently the common practice is for courts to roll these in to the general damages awarded for non-pecuniary loss without a stand alone analysis.  Last week the BC Court of Appeal published reasons indicating the latter is the preferred practice.

In the recent case (Riley v. Ritsco) the Plaintiff was injured in a vehicle collision and sued for damages.  At trial non-pecuniary damages of $65,000 were assessed.  The Plaintiff successfully appealed and in doing so the BC Court of Appeal increased this head of damage to $85,000.  The Plaintiff also argued that the judge erred in not assessing damages for loss of housekeeping capacity as a stand alone head of damage.  In finding no error occured here the BC Court of Appeal provided the following guidance:

[101]     It is now well-established that where a plaintiff’s injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages.

[102]     I acknowledge what was said in Kroeker about segregated non-pecuniary awards “where the special facts of a case” warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff’s lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise.

[103]     The $85,000 figure that I have proposed for non-pecuniary loss takes into account all of the general damages the plaintiff has suffered and will suffer. It should not be augmented by a segregated award for loss of housekeeping capacity.