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Month: April 2013

$85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

Written by admin on . Posted in ICBC Femur Injury Cases. 50 Comments on $85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

It is rare to find caselaw dealing with damages for a femur fracture alone as the forces required to break the body’s biggest bone usually also result in other complex injuries.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with such an injury without significant complication from other factors.
In this week’s case (Gravelle v. Seargeant) the Plaintiff pedestrian was struck by the Defendant’s vehicle while he was walking on the shoulder of a road.  The impact threw the plaintiff between and 30 feet.  He suffered a fractured right femur which required surgical interventions.  Despite a relatively good recovery he was expected to have some permanent level of restriction due to his injury.  In assessing non-pecuniary damages at $85,000 Mr. Justice Kelleher provided the following reasons:
[50]         The following is the application of these factors to the plaintiff:
(a)      Age of the plaintiff: 
Mr. Gravelle was 16 when the accident happened.  The evidence establishes that he will likely suffer some measure of pain for the rest of his life.
(b)      Nature of the injury:
Mr. Gravelle suffered a fractured right femur that required an open reduction and insertion of an intramedullary nail and locking screws.  He also suffered injuries to his low back, right groin and right knee, which remain a cause of pain.
(c)      Severity and duration of pain:
He was in severe pain for a short period of time.  He was required to take pain medication for 4 – 6 months.  Four and a half years after the accident he continues to suffer pain.
(d)      Disability:
The plaintiff was totally disabled for some six months, and continues to have some measure of disability.
(e)      Emotional suffering:
The plaintiff’s mother testified that the plaintiff was isolated and less confident following the first collision.  He did not seek counselling for this.
(f)       Loss and impairment of life:
Mr. Gravelle’s life was interrupted and altered by the first collision.  He missed part of Grade 10.  His mobility was significantly restricted during the summer.  He has permanent injuries and has some impairment of his ability to perform physical labour and enjoy his former physical pursuits.
(g)      Impairment of family, marital and social relationships:
Mr. Gravelle does not enjoy spending a lot of time with friends.  He was somewhat like this before the accident as well.
(h)      Impairment of physical and mental abilities:
He has a permanent impairment of his physical capabilities.  There is no impairment of his mental abilities.
(i)       Loss of Lifestyle:
Mr. Gravelle was unable to engage in snowboarding, an important part of his life, for some time.  He has been able to return to it, but pain prevents him from snowboarding in the same manner as before.
(j)       Stoicism:
Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees that the plaintiff should not be penalized for this…
53]         Having considered the plaintiff’s injuries and the factors listed above, in light of the case law, I assess non-pecuniary damages at $85,000.

PAU Strips Ontario Insurer of Defense for Payment of BC No Fault Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

As previously discussed, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province and further not to raise any defences which are not available to BC insurers.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, stripping a PAU signatory of a defence they otherwise would be entitled to.
In the recent case (McCord v. Insurance Corporation of British Columbia) the Plaintiff was injured as a pedestrian in a BC collision.  He was insured for no-fault benefits both with ICBC  and a private insurer from Ontario.  He received benefits from ICBC and subsequently sought coverage with the Ontario provider.  The Ontario insurer denied payment relying on an Ontario regulation which limited payments “if the person receives benefits under the law of the jurisdiction in which the accident occurred“.
The Plaintiff sued arguing the Ontario insurer could not rely on this section as they signed the PAU.   Mr. Justice Saunders agreed and provided the following reasons:
[9]             Western Assurance says that there has been no violation on its part of the PAU; it has not set up a defence as to coverage, but has simply taken a position as to the amount of coverage available….
[10]         The PAU sets out two provisions. One is an undertaking not to raise defences. The other is an undertaking to pay limits as set out in (a) and (b) of the PAU. A “position” taken by a foreign insurer that only the minimum amount is payable, and not the full amounts otherwise payable under the foreign insurer’s policy, is, in every sense of the word, a defence. The position being taken here by Western Assurance is one of the types of conduct which the PAU is designed to prevent…
[12]         In my view, the raising of the provisions of the Regulation by Western Assurance is a defence within the meaning of the PAU, and reliance on those provisions as a defence would constitute a breach of the undertaking under the PAU.
[13]         The application is therefore allowed, and s. 57(1.1) of the Regulation will have no application to Mr. McCord’s claim for benefits.