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.

Posts Tagged ‘Barta v. DaSilva’

“Meagre” Plaintiff Income Keeps Court From Awarding Costs to Successful Defendant

March 15th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating judicial discretion in dealing with costs after a plaintiff fails to beat a defence formal offer at trial.

In today’s case (Barta v. DaSilva) the Plaintiff was injured in a 2007 collision and sued for damages.  The Plaintiff alleged traumatic brain injury and argued that he had millions in losses as a result.  At trial a jury rejected the alleged brain injury and awarded damages of $77,000 for the Plaintiff’s proven injuries.  Prior to trial ICBC offered to settle the case for $150,000.

The Plaintiff sought full costs for the trial where ICBC sought to have the Plaintiff pay their post offer costs or simply strip each party of costs for the trial itself.  In the end the court ordered that each party bear their own costs of the trial.  In finding this fair the court noted that due to the Plaintiff’s ‘meagre‘ income there would be “no utility in imposing the costs of the trial on the plaintiff.”.

In reaching this decision Mr. Justice Affleck provided the following reasons:

[12]        The defendant’s offer of $150,000 plus costs and disbursements was a serious offer. The plaintiff ought to have known that the defendant’s legal advisers had a plausible basis for concluding that the plaintiff would be unable to prove a causal connection between his accident injuries and his financial losses. In my opinion the defendant’s offer ought reasonably to have been accepted.

[13]        The relative financial position of the parties is of no consequence on this application. The defence was conducted by ICBC, which obviously has much greater financial strength than the plaintiff, but unless it used that strength improperly in this litigation that is a neutral factor: See Vander Maeden v. Condon, 2014 BCSC 677.

[14]        When its offer to settle was not accepted the defendant had no serious option but to defend the action at trial. The result was an award of damages about one half the offer made by the defendant. In that circumstance the deterrent function of the costs rule would be nullified if I exercise my discretion by awarding costs to the plaintiff throughout as he submits I should. I declined to do so.

[15]        The evidence at trial indicates that the plaintiff’s assets were severely depleted by the effects of the financial downturn in 2008 and 2009. Mr. Creighton informed me that his client’s income is now meagre. I can see no utility in imposing the costs of the trial on the plaintiff.

[16]        My order is that the plaintiff is entitled to his costs and disbursements to and including May 15, 2014, and that thereafter the parties will each bear their own costs and disbursements. I recognize that the usual order would be to impose the costs following the defendant’s offer on the plaintiff. The defendant, however, has proposed the disposition which I have made, which I consider to be generous to the plaintiff in the circumstances.


ICBC Claim for “Disastrous Losses on the Stock Market” Fails at Trial

November 12th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering whether a Plaintiff’s substantial losses in the stock market could be compensated as part of a personal injury lawsuit.  On the facts of the case the Court rejected this claim.

In today’s case (Barta v. DaSilva) the Plaintiff was involved in a 2007 collision caused by the Defendant.  The Plaintiff alleged that the collision caused a mild traumatic brain injury and this “destroyed his capacity to earn an income, trading securities on his own account, and has caused him to lose the capital he accumulated and invested in the stock market“.

Around the time of the crash the plaintiff’s total portfolio was valued around $1.8 million.  By the end of the 2009 the value plummeted to less than $400,000.  In rejecting the claim that a brain injury had anything to do with this diminished asset, Mr. Justice Affleck provided the following reasons:

[56]         By July 31, 2008, a year after the accident, the plaintiff’s portfolio had increased to $2,790,301.95.  He had made successful trades in that year increasing his portfolio by almost $921,000.  There is no possible inference to be drawn that cognitive impairment had damaged his trading ability during this time period.  Then disaster struck.  In September 2008 the market “crashed” and the plaintiff testified that he was “hit hard”.

[57]         The plaintiff had purchased Lehman Brothers Holdings prior to the crash and had made a considerable capital gain in a few days.  This appeared to have encouraged the plaintiff to hold Lehman Brothers even as his own financial crisis deepened, as did that of the market generally.  This the plaintiff argues indicates his impaired judgment following the accident.  However, I have no basis to conclude his decision to retain the Lehman Brothers stock was irrational at the time it was made.  He had made a substantial quick profit in a few days and I believe he concluded he could eventually continue to make money by holding on.  He did not foresee Lehman Brothers would be forced into bankruptcy.  Many investors suffered a similar fate…

…The plaintiff engaged in risky stock market trading over several years.  He developed a level of expertise that permitted him to earn a reasonable income.  However his unwise decisions made in 2008, coupled with the stock market collapse, and the judgment in favour of Mr. Palkovics created financial conditions from which he could not recover.  In my opinion the effects of the accident did not compromise his ability to trade on the stock market.   

[61]         It is impossible not to have sympathy with Mr. Barta’s disastrous losses on the stock market but the evidence does not satisfy me that he has proven that the defendant’s negligence caused them.