Month: February 2021

BC Passes 6% Disbursement Limit on “Vehicle Injury Proceedings”

Written by ERIK MAGRAKEN on February 25, 2021. Posted in Uncategorized.

This week the BC Government published their text for a retroactive disbursement limit for individuals seeking compensation for injuries caused by the carelessness of other motorists.

A 6% limit was put in place. An arbitrary percentage divorced from the actual disbursements an individual may have to incur to meet their burden of proof. A constitutional challenge is likely to be filed but unless the regulation is struck down this is another handicapping of the system in favour of BC’s insurance monopoly. This regulation in essence forces a litigant to either not call the necessary evidence to prove their case or prove their case but be disallowed recovery of the actual expenses that must be incurred to do so.

The text of the disbursement limit is as follows:

Limits on amount of disbursements

5 (1) In this section:

“disbursement limit” means, in relation to a vehicle injury proceeding, (a) the amount that is 6% of the total award of damages assessed by the court in the vehicle injury proceeding or, if an offer to settle the vehicle injury proceeding is accepted, 6% of the amount offered, or (b) if the court dismisses the vehicle injury proceeding or, at the conclusion of the vehicle injury proceeding, does not make an award of damages, the amount determined by the court;

“excluded disbursements” means the following: (a) fees payable to the Crown under the Supreme Court Civil Rules; (b) fees payable to the sheriff for non-refundable deposits in civil jury trials under the Supreme Court Civil Rules; (c) disbursements incurred by a party if the court ordered the costs of the proceeding to be paid as special costs; (d) disbursements incurred for an expert report on the issue of liability, if the court ordered that those expenses are excluded disbursements.

(2) Only the following may be allowed or awarded to a party in a vehicle injury proceeding as disbursements: (a) disbursements up to the disbursement limit; (b) excluded disbursements.

(3) The limits set out in subsection (2) do not apply (a) to a vehicle injury proceeding if (i) a notice of trial was filed and served before August 12, 2020, and (ii) the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is before June 1, 2021, or (b) to a vehicle injury proceeding if (i) a notice of trial was filed and served before August 12, 2020, (ii) the trial date set out in the notice of trial filed in relation to the vehicle injury proceeding is on or after June 1, 2021, and (iii) the court is satisfied that the party necessarily or properly incurred disbursements before August 12, 2020 in excess of the disbursement limit

Baseball Bat Beating Leads to $7 million Damage Assessment

Written by ERIK MAGRAKEN on February 12, 2021. Posted in Cost of Future Care Cases, ICBC Brain Injury Cases.

In a tragic case reasons for judgement were published by the BC Supreme Court, Kamloops Registry, assessing damages in a personal injury lawsuit at nearly $7 million following a baseball bat attack.

In the recent case (Simpson v. Teichrieb) the Defendant “savagely battered” the teenage plaintiff with a baseball bat leaving him with “a catastrophic brain injury, have left Jessie requiring constant care and eliminated any prospect of employability.“.

At the time of the assault the plaintiff was 18 years old, 5’5” in height and weighed about 135 pounds. The defendant was 39 years old, 6’0” tall and weighed about 220 pounds. The Plaintiff was in the Defendant’s yard and the Defendant was concerned about possible theft. He beat the plaintiff nearly to death resulting in “a severe skull fracture and significant brain swelling. He had facial fractures and a notable bruise to his lower back in the shape of a baseball bat.”.

The Defendant was criminally convicted and sentenced to prison.

The bulk of the assessed damages reflect estimates of a lifetime of lost earnings and future care. In assessing non-pecuniary damages at Canada’s current rough upper limit of $393,000 Mr. Justice Dley provided the following reasons:

Dental “Failure to Warn” Case Dismissed Where Court Finds Reasonable Person Would Have Consented To Risks

Written by ERIK MAGRAKEN on February 4, 2021. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Court of Appeal finding that no error was made by a trial judge who dismissed a dental surgery negligence claim where risks of the procedure were not adequately canvassed with a patient.

In this week’s case (Warlow v. Sadeghi) the Plaintiff was a patient who underwent dental surgery by the Defendant. The procedure resulted in an “injured a nerve in Ms. Warlow’s lower right jaw, resulting in permanent and debilitating nerve pain that has altered virtually every aspect of her life.“. Prior to surgery the Defendant did not adequately inform the plaintiff of this potential risk. Despite this the trial judge dismissed the claim finding a reasonable patient would have consented had the risk been canvassed. In dississing the plaintiff’s appeal the BC Court of Appeal provided the following reasons: