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 ‘Welygan v. Willms’

Undeclared Income And Tort Recovery Difficulties

March 20th, 2013

Although income loss from ‘undeclared’ sources is recoverable in a BC personal injury claim attempting to do so can create some practical difficulties.  First off testifying to actual income differing from declared income can open the door to consequences to Revenue Canada.  Second, proving the loss can become a real barrier for a Plaintiff.  This second concern was highlighted in reasons for judgement released recently by the BC Supreme Court, Prince George Registry.

In the recent case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle accident.  While much of her claim was rejected at trial the Court did accept that she suffered from some injury and wage loss.   The Plaintiff worked in the food service industry and derived some of her income in tips.  Her tips were undeclared.  The Court did not accept the level of loss that the Plaintiff testified to and in doing so the Court provided the following comments highlighting the difficulty in assessing losses based on undeclared income:

[396]     Her only irregular employment was as a server in bars from time to time where she earned minimum income supplemented with undeclared income from tips.

[397]     Undeclared tips is a commonplace occurrence for young people working in the food service industry, although it makes it more difficult to determine the plaintiff’s actual pre-accident income when the only evidence of the value of the tips comes from her “estimate” at trial, unsubstantiated by any written record.

[398]     The plaintiff possessed a certificate from a medical terminology course that she never used, and says she had aspirations to go to hairdressing school although she had not made any inquiries or taken any steps towards that end.

[399]     I am unable to assess her pre-trial loss of income claim on any other basis than her history of earnings from the food service industry, using her income tax information, and adding a somewhat arbitrary amount for tips that I will accept she was receiving but not reporting, for the time period in which I conclude she was incapable of returning to that work because of injuries related to the accident.

[400]     I have found that the plaintiff recovered from her disabling pain from the accident by the end of 2008, and by that point in time her pre-existing psychiatric illnesses had settled back to their pre-accident level and were no longer exacerbating her physical pain.

[401]     The plaintiff says she intended to continue working at Steamers Pub until September 2008 and then go to hairdressing school.

[402]     She was making approximately $660 per month in 2008 from Steamers Pub, up to the time of the accident, from her income tax records.

[403]     In addition she says she was making about $900 per month from undeclared tips.

[404]     I am not prepared to accept a figure of $900 per month for tips without some independent proof. I will accept an amount of half that number of $450 per month for tips.


Facebook Photos Assist in Challenging Injury Claim

February 18th, 2013

In my continued efforts to track BC Caselaw addressing Facebook photos in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, highlighting the successful use of such photos in challenging an injury claim.

In last week’s case (Welygan v. Willms) the Plaintiff was injured in a 2008 motorcycle collision.  Liability was admitted by the defendant.  The Plaintiff advanced a claim alleging longstanding and disabling physical injuries.  The Defendant acknowledged some level of injury occurred but disputed the extent and severity of the claim.  Ultimately the Court rejected many of the Plaintiff’s advanced damages and in doing so provided the following comments addressing Facebook photos which were put into evidence:

 [107]     She was shown a Facebook photograph of her performing on stage and she says she does not recall what she was doing at the time…

[331]     …her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage…

[369]     I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.

[370]     In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.