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 ‘Mr. Justice Thompson’

Court Prohibits Surveillance During Defence Medical Exam

July 16th, 2017

Useful reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, finding it is appropriate to prohibit a Defendant from conducting video surveillance of a plaintiff who is compelled to attend a Defence medical examination in a personal injury lawsuit.

In the recent case (Moquin v. Fitt) the Mr. Justice Thompson provided the following reasons justifying this restriction:

[21]         The defendant nominates a R. 7-6 medical examiner, but it is the Court that appoints the examiner and orders the plaintiff to attend for the examination at a particular time and place. On the dates of the medical examinations, the plaintiff will not be in public on journeys of his own choosing. If the defendant or the defendant’s insurer takes advantage of the opportunity created by court order to engage in surveillance then the defendant might be seen by a reasonable observer to be acting in close concert with the Court. Partisan conduct aligned with the court order may be seen as lessening or compromising the Court’s neutrality, and the Court must, of course, zealously protect its reputation for impartiality.

[22]         Barring surveillance on the trip to or from the medical examinations is hardly a significant barrier to the defendant’s ability to gather information, and in my view the imposition of a surveillance bar and the consequent chance that the trier of fact might be deprived of some relevant information is a small price to pay to guard the Court’s reputation. Returning to R. 13-1(9), I think the non-surveillance condition promotes the just determination of this proceeding — a stated object of the Rules — because it prevents the possibility of conduct which might degrade the perception of the Court’s impartiality.


Peeping Tom Ordered to Pay $93,850 For Recording Step-Daughter

May 4th, 2016

Reasons for judgement were released today by the BC Supreme Court, Duncan Registry, ordering a peeping tom Defendant to pay $93,850 in damages for recording his step-daughter while she was showering and otherwise undressed.

In today’s case (TKL v. TMP) the Court was presented with the following statement of facts –

[16]         On four occasions in the first half of 2011, the defendant surreptitiously video-recorded the plaintiff while she was in the shower and for a period of time shortly after she left the shower. The plaintiff was 20-years-old the first time this happened; on the latter three occasions she was 21. In July 2011, the plaintiff came across the videos on the defendant’s camera. The matter was reported to the RCMP.

[17]         The agreed statement of facts referenced earlier includes a recitation of what was depicted on the video recordings. The following summary of the four recordings is drawn from the agreed statement of facts:

13 January 2011

The plaintiff is seen exiting the bathroom door and entering into her bedroom. She is wearing a towel wrapped around her body and has a towel wrapped around her head. She closes her bedroom door and walks around in her bedroom. She gathers her clothes and takes off her towels. Her entire body, including her buttocks, genital area and breasts are captured on the video clip and in the reflection of mirrors that are against her bedroom wall. She is seen bending over to pull up her underwear.

8 May 2011

The plaintiff is seen entering into the stand-up shower with a clear glass door. She is completely naked and the video-recording captures images of her vagina, breasts and buttocks. It also shows her masturbating in the shower for a couple of minutes. She is next seen shaving and trimming her pubic hair, and shaving her armpits and legs. She then goes back to masturbating and eventually sits on the shower stall floor. She exits the shower stall and dries off.

22 May 2011

The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. He adjusts the angle and zooms in at various times, capturing images of the plaintiff’s vagina, buttocks and breasts. He zooms in on her nipples, zooms out and then re-zooms on her face. She masturbates. After a few minutes of masturbating she washes and conditions her hair, with her arms extended over her shoulders. She is seen getting out of the shower, and images of her breasts, buttocks and vagina are clearly captured.

12 June 2011

The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. The plaintiff can be seen in the shower completely naked. She is captured exiting the shower and her breasts and vagina are within view.

In finding these actions breached BC’s Privacy Act and assessing non-pecuniary damages at $85,000 Mr. Justice Thompson provided the following reasons:

20]         By spying on and video-recording the plaintiff as described above, the defendant committed disturbing violations of the plaintiff’s personal privacy. Subsection 1(1) of the Privacy Act provides that it is a tort for a person, wilfully and without a claim of right, to violate the privacy of another. Little analysis is necessary on the facts of this case to reach the conclusion that the defendant has committed this statutory tort. The defendant acted wilfully. The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed, and changing her clothes in her bedroom with the door closed. The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy. The defendant’s liability for the statutory tort is beyond question…

[52]         My sense is that the plaintiff in the case at bar has suffered a greater degree of pain, disability, emotional suffering, impairment of family and social relationships, and loss of lifestyle than the plaintiffs in the Malcolm and L.A.M. cases. I conclude that the quantum of compensatory damages awarded in those cases would be wholly inadequate compensation in the case at bar. I award $85,000 for general damages, of which $25,000 is allotted to take account of the aggravated features of the case — I agree with the plaintiff that the damages ought to be significantly increased in response to the defendant’s thoroughly undignified and humiliating actions.

 


$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

April 1st, 2015

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder injury caused by a collision.

In today’s case (Gaudrealt v. Gobeil) the Plaintiff was involved in a ‘forceful‘ rear-end collision in 2009.  He suffered various injuries the most serious of which was a chronic shoulder pain.  In assessing non-pecuniary damages at $75,000 Mr. Justice Thompson provided the following reasons:

[15]        I find that most of the right shoulder abnormalities shown by the X-ray and MRI imaging pre-date the MVA. I conclude that the superficial tearing of the bursal surface of the supraspinatus tendon and the biceps tendinitis is a direct result of the MVA. The other right shoulder changes were pre-existing, albeit asymptomatic and rendered symptomatic by the MVA.

[16]        The medical evidence firmly supports the conclusion that the MVA has put the plaintiff in a position where he ought not to do physical construction work. However, I do find that if the MVA had not happened, there is a measurable risk that the asymptomatic pre-existing right shoulder abnormalities would have progressed and at some point interfered with the plaintiff’s ability to do this heavy type of work. Doing the best I can with the evidence available, I think this contingency to be on the order of a 50% risk within ten years.

[17]        There is a chance that Mr. Gaudreault will need rotator cuff surgery to repair MVA-related damage, but I think this is unlikely. He seems disinclined to that alternative. If he continues to stay away from heavy physical work, I think it is highly likely that he will avoid surgery…

[22]        The proper approach to the assessment of non-pecuniary damages is well-settled and is encapsulated in the often-cited passage at paras. 45-46 in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46. The plaintiff urges an award of $125,000, emphasizing the expected permanency of his partial disability, the chance that shoulder surgery will be necessary, the interruption of his ability to work without restriction, and the impact on his enjoyment of golf and tennis. The defendants submit that $40,000 would be proper compensation. They emphasize that shoulder problems may have emerged in any event of the MVA. They submit that the plaintiff has taken no therapy treatment in the past two years, he has taken no pain medications since the year following the MVA, and he no longer sees his family doctor for his MVA-related complaints — all of which indicate that the plaintiff is not in a great deal of pain. They contend that there has been little in the way of lifestyle interruption, pointing to the plaintiff’s ability to continue to referee soccer and the plaintiff’s admission that it is unlikely that he would have spent much time golfing or playing tennis in the busy years since the accident.

[23]        The plaintiff cites White v. Wiens, 2015 BCSC 188 ($100,000); Ostrikoff v. Oliveira, 2014 BCSC 531 ($105,000); Morlan v. Barrett, 2012 BCCA 66 ($125,000); Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455 ($125,000); and Power v. White, 2010 BCSC 1084 ($135,000). The defendants cite Jordan v. Lowe, 2012 BCSC 1482 ($35,000); McKenzie v. Mills, 2013 BCSC 1505 ($40,000); Bissonnette v. Horn, 2012 BCSC 518 ($50,000); Jorgensen v. Coonce, 2013 BCSC 158 ($60,000); and Bansi v. Pye, 2012 BCSC 556 ($75,000).

[24]        There is no question that Mr. Gaudreault has suffered a permanent partial disability that interferes with his work capacity, but he is not experiencing the degree of pain, emotional disturbance and interference with his lifestyle featured in the cases cited by his counsel. I fix the plaintiff’s non-pecuniary damages at $75,000.