Low Jury Award For Non Pecuniary Damages Set Aside Given Findings of Ongoing Deficit

Reasons for judgment were published this week by the BC Court of Appeal overturning a low jury award for non-pecuniary damages where they also awarded damages for future medical care and diminished earning capacity.

In the recent case (Thomas v. Foskett) the Plaintiff suffered a shoulder injury in a collision and sued for damages.  At trial, some 5 years later, a jury awarded the Plaintiff damages including non-pecuniary damages of $15,000, $16,308 for loss of future income earning capacity and $20,336 for costs of future care.

The Plaintiff appealed the non-pecuniary assessment arguing that the findings of needing future medical treatment and having a diminished earning capacity are inconsistent with such a low assessment of non-pecuniary damages.  The Court of Appeal agreed, set aside the jury’s award and substituted an assessment of $60,000 for non-pecuniary loss.  In reaching this result the court provided the following reasons:

Continue reading

Diminished Earning Capacity Damages Awarded Despite Plaintiff Increasing Earnings Each Year Since Collision

Just because a Plaintiff suffers no past loss of income does not preclude a court from awarding damages for diminished future earning capacity.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Grant v. Ditmarsia Holdings Ltd) the Plaintiff was injured in a 2015 collisions that the Defendants admitted fault for.

The crash caused chronic physical and psychological injuries.  The Plaintiff was  “a hardworking journeyman plumber” and despite his injuries, which had a poor prognosis for full recovery, continued to work and increased his earnings in the years following the crash.  Despite this he expressed concern that in the long term his stoicicism could not continue indefinitely and the injuries would eventually negatively impact his earnings.  The Court agreed.  In assessing damages at $325,000 for future diminished earning capacity Madam Justice Wilkinson provided the following reasons:

Continue reading

Three Strikes and ICBC’s Out! – Insurer’s Denial of Accelerated Vehicle Depreciation Fails Again

For the third time in one month ICBC has been ordered by the Civil Resolution Tribunal to pay a vehicle owner damages for accelerated depreciation following a vehicle collision.

When a vehicle is damaged in a crash it often suffers a significant loss of market value, even after all reasonable repairs are done.  ICBC chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims.  For the third time in one month the Civil Resolution Tribunal has held ICBC insured driver liable for paying such damages.

In the most recent case (Herriott v. Yuen) the Applicant’s Audi Quattro sustained over $10,000 in damages in a crash that the Respondent admitted fault for.  After the vehicle was repaired both the Applicant’s dealership and an expert appraiser noted there was an accelerated depreciation in the vehicle’s remaining market value.  ICBC denied this claim arguing the vehicle is worth no less than it would be even without such a significant crash.  In rejecting ICBC’s position and ordering damages paid recognizing the accelerated depreciation CRT Vice Chair Andrea Ritchie provided the following reasons:

Continue reading

ICBC Ordered To Pay Damages for Accelerated Vehicle Depreciation Following Significant Crash

As discussed numerous times on this site BC law recognizes that if property is damaged by the wrong doing of another and if that property is then worth less even after all reasonable repairs have been made the ‘accelerated depreciation’ can be recovered against the at fault party.

ICBC often refuses to recognize accelerated depreciation claims following collisions and forces crash victims to litigate these claims.   Reasons for judgement were published today by BC’s Civil Resolution Tribunal with such a fact pattern.

In today’s case (Peterson v. Texmo) the Applicant’s vehicle sustained over $10,000 in damages in a crash the Respondent was at fault for.  The Applicant asked ICBC to compensate him for his vehicle’s accelerated depreciation which reached several thousand dollars but the insurer refused to recognize this loss raising several arguments which missed the mark such as suggesting that if the vehicle was not sold there is no loss and that the vehicle was imported from the US which if resold there may not have a similar market loss.  In rejecting these arguments and finding that the applicant was entitled to damages for accelerated depreciation Tribunal Member David Jiang provided the following reasons:

Continue reading

BC Court of Appeal Finds 60/40 Split of Fault Appropriate For Left Hand Turn Crash at Uncontrolled Intersection

Reasons for judgement were published this week by the BC Court of Appeal overturning a trial result and finding that a 60/40 split of fault was appropriate following a collision involving a left hand turning vehicle at an uncontrolled collision.

In the recent case (Randhawa v. Evans) the Respondent Evans was turning left at an uncontrolled intersection.  There were three lanes in the opposite direction of travel.  The traffic in the two lanes closest to the Respondent stopped.  Believing the curb lane was clear the Respondent commenced a left turn. At the same time the Appellant Ms. Paul was travelling in the curb lane in the the opposite direction.  She failed to realize the vehicles to her left had stopped to allow the Respondent to turn left.  At the same time the Respondent failed to realize the Appellant was travelling int he curb lane and the vehicles collided.

At trial the REspondent was found 10% at fault for the crash with the Appellant shouldering 90% of the blame.  The BC Court of Appeal found this apportionment was wrong and substituted a finding of 60% blame for the left turning vehicle and 40% for the ongociming Appellant.  In reaching this liability split the Court provided the following reasons:

Continue reading

ICBC Expert Witness Rejected for “Tailoring His Evidence” For the Insurer

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting and outright criticizing the opinion of an expert physician who routinely is hired by ICBC for defence medical exams.

In today’s case (Moges v. Sanderson) the Plaintiff suffered injuries in three collisions.  The defendants accepted fault for the crashes.  The Plaintiff suffered a variety of physical and psychological injuries as a result.  In the course of the lawsuit ICBC obtained a medico-legal report from a psychiatrist they routinely hire who provided opinion evidence minimizing the connection between any psychological consequences and the collisions.  In rejecting this opinion evidence as being tailored to the defence and evidencing bias Madam Justice Shergill provided the following criticism:

Continue reading

BC Liberals Promise Hybrid System of ICBC and Private Insurance With Choice of Coverage and Rights

The BC NDP and Green Party voted in mandatory no-fault insurance.  In short this means that later next year, if you or your loved ones are struck by a careless driver and injured you have no right to sue them for your full damages.  Instead you are at the mercy of ICBC to administer a limited selection of ‘no-fault’ benefits and nothing more.  If ICBC does not administer these fairly you do not have the right to take them to court instead being limited to a provincially created tribunal for dispute resolution.

Today the BC Liberals announced their election platform for ICBC noting they will create a hybrid market with both ICBC and private insurers competing for your business.  Their platform apparently will allow ICBC to corner the no-fault market with British Columbians having the choice to buy such limited coverage with ICBC or to buy ‘tort’ coverage with private insurers giving them the right to claim full damages from at fault motorists.

The Liberals’ press release provided the following details:

BC Liberals will open up the market to give British Columbians true choice in auto insurance by ending the ICBC monopoly and letting drivers pick the best rate available to save money.

A BC Liberal Government will:

  • End the ICBC monopoly and give drivers the choice to purchase vehicle damage coverage (collision, comprehensive, specified perils and liability insurance for property damage) direct from the private market.
  • Give drivers the choice to purchase the best rate for accident benefits coverage for bodily harm and injury from either the private market (tort system) or ICBC (no-fault system).
  • Give all new drivers credit for two years of driving experience, increasing to four years if a new driver has completed driver education. This will result in significantly lower premiums for new drivers with clean records who demonstrate safe driving habits and will be available to both new drivers with their own policies and parents with children listed as occasional drivers.
  • Return excessive premiums charged by ICBC during 2020 to their rightful owners- the drivers of BC – this should have been done months ago, as other provinces have already done, but the NDP want to bribe you with your own money to get your votes in this election. Don’t let the NDP take your money and then try to buy your votes to get it back.

CRT Dismisses “Placeholder” ICBC Benefits Lawsuits

Earlier this year BC’s Civil Resolution Tribunal (“CRT”) noted that their forum cannot be used to preserve limitation periods for ICBC no fault benefit lawsuits where no such past benefits are outstanding.  Last week the CRT confirmed this position by dismissing such a ‘placeholder’ lawsuit.

In last week’s case (Yousefi v. ICBC) the Applicant filed a CRT action to preserve the right to seek ICBC no fault benefits should any such benefits be denied.  The CRT noted that such claims cannot be indefinitely paused and if they are not withdrawn must proceed to judgement were they will be dismissed if no past benefits are outstanding.

The CRT reached similar conclusions in two sister decision released at the same time (Shin v. ICBC and Bali v. ICBC)

In reaching such a disposition in this case  Vice Chair Andrea Ritchie provided the following reasons:

Continue reading

CRT Sidesteps First Opportunity To Add Clarity to BC’s “Minor” Injury Law

As of today BC’s Civil Resolution Tribunal (“CRT”) which as been granted near exclusive jurisdiction to determine if injuries are “minor” as defined by the Insurance (Vehicle) Act has yet to rule on any case providing any assistance in interpreting this new (and constitutionally challenged) legal scheme.

Earlier this year the CRT was asked to set aside a “minor” injury settlement after the applicant discovered a disc bulge.  The CRT refused to do so.  Today reasons for judgement were published (Bajracharya v. Rahul) by the CRT inovlving a collision claim disputing the ‘minor’ injury designation.  Despite this opportunity the CRT refused to dive into the topic finding that the Applicant was liable for the collision thus dismissing the claim and finding that the minor injury question did not need to be answered.  In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:

Continue reading

Motorist Ordered to Pay $1,805 for “Accelerated Depreciation” Following Collision With Porsche

As discussed numerous times on this site BC law recognizes that if property is damaged by the wrong doing of another and if that property is then worth less even after all reasonable repairs have been made the ‘accelerated depreciation’ can be recovered against the at fault party.

In the first Accelerated Depreciation claim heard by BC’s Civil Resolution Tribunal such damages were awarded to the owner of a Porsche that was damaged in a collision.

In today’s case (Lai v. Leung) the Applicant’s vehicle was struck by the Respondent who admitted fault of the crash.  The impact caused damages which cost over $6,500 to repair.   The Applicant consulted with an appraiser who provided evidence that as a result the vehicle will be worth less on the open market.  ICBC refused to recognize this.  Both ICBC and the at fault motorist were sued but the tribunal noted that ICBC was not a correct party in such a dispute and the claim is properly brought against the at fault motorist with ICBC simply playing the role of their insurer.

In siding with the Applicant and accepting the expert opinion of the Fournier Auto Group Tribunal Member Trisha Apland provided the following reasons in ordering that $1,805 in damages for Accelerated Depreciation be paid:

Continue reading

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer