Author: ERIK MAGRAKEN

“Minor Injury” Settlement Not Set Aside Following Subsequent Discovery of Disc Bulge

Written by ERIK MAGRAKEN on September 14, 2020. Posted in BC Civil Resolution Tribunal.

In what I believe is the first case of BC’s Civil Resolution Tribunal addressing ‘minor’ injuries under the ever changing ICBC legal landscape reasons for decision were published earlier this month refusing to set aside a ‘minor injury’ settlement after the discovery of a disc bulge.

In the recent case (Naqvi v. ICBC) the applicant was involved in a collision in May, 2019. His doctor diagnosed him as suffering injuries to the right shoulder, right upper back, and left lower back radiating to the left hip with an optimistic prognosis to make full recovery. Believing these were caught by the minor injury regulation the application settled his claim for $6,890 which included non-pecuniary damages at the capped amount for such injuries.

Subsequent to settlement the applicant discovered he had a disc bulge in his spine and argued this new diagnosed injury falls outside of the ‘minor injury’ definition and accordingly sought to set the settlement asise. The CRT refused to allow this arguing a binding settlement was reached that was “not grossly unfair or unconscionable“. In refusing to allow the settlement to be set aside tribunal Vice Chair Andrea Richie provided the following reasons:

Staged Collisions Leading to ICBC Payouts Lead to Civil Fraud Judgment

Written by ERIK MAGRAKEN on September 10, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding numerous defendants were involved in several staged collisions.

In the recent case (ICBC v. Singh) several defendants were sued for fraud by ICBC to recover money the insurer paid out from the claims. Much of this was for vehicle damage claims and other various accident benefits. Injury claims were advanced by some of the parties as well but adjudication of those were put off until the determination of the fraud claims.

In total ICBC paid out over $83,000 plus additional legals costs related to the claims to date. In finding the collisions staged and ordering repayment of the damages Madam Justice Duncan provided the following reasons:

$9,076,854 Judgement For Plaintiff With Catastrophic Brain Injury Following Tractor Trailer Collision

Written by ERIK MAGRAKEN on September 4, 2020. Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages at over $9 million for a Plaintiff who sustained life altering injuries following a tractor trailer collision.

In today’s case (Uy v. Dhillon) the Plaintiff’s vehicle was struck by a tractor trailer while driving on the Coquihalla highway in British Columbia’ interior. The Defendant denied fault but was found liable at trial with that finding being confirmed by the BC Court of Appeal.

This resulted in “a serious brain injury in the Accident that has resulted in a significant degree of cognitive impairment” for the Plaintiff. The brain injury rendered him totally unemployable with deficits so profound that he required “24-hour care and supervision for the rest of his life. “.

Upper limit non-pecuniary damages of $388,177 were awarded. The bulk of the judgement centered around the cost of 24 hour lifetime care which the Court assessed at over $7 million. In finding the injuries warranted non pecuniary damages at the rough upper limit Mr. Justice Skolrood provided the following reasons:

$65,000 Non Pecuniary Assessment for Fractured Collarbone and Anxiety

Written by ERIK MAGRAKEN on September 1, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a fractured collarbone sustained in a collision.

In today’s case (Folk v. Folk) the Plaintiff was 5 years old and riding as a passenger in a vehicle involved in a collision which caused a fractured collarbone. This injury healed fully in 2 months. The Plaintiff also suffered anxiety for several years following the crash. The Plaintiff attributed various other symptoms to the crash but the Court found causation could not be established. In assessing non pecuniary damages at $65,000 for the collision related injuries Madam Justice Gropper provided the following reasons:

Plaintiff Stripped of Partial Costs For Trial Judgment Below Advance Payments

Written by ERIK MAGRAKEN on August 28, 2020. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry addressing a somewhat unique fact pattern of what costs consequences should be after trial where a Plaintiff was awarded damages below the amount of money they received prior to trial by way of advances paid by the Defendants.

In today’s case (Singh v. Chand) the Plaintiff sued for damages as a result of two collisions. The claim for the second collision was dismissed. The Defendants for the first crash admitted liability. Prior to trial they advanced the Plaintiff $250,000. They agreed that they would not seek repayment regardless of the outcome of the trial. At trial the Plaintiff’s damages were assessed below this amount with $137,288 being awarded.

The Court found that in these circumstances the Plaintiff should recover costs to the date of the advance payment and the Defendants entitled to their costs from that date onward. In reaching this decision Madam Justice Watchuk provided the following reasons:

Kamloops Catholic Church and Priest Ordered to Pay Over $800,000 After “Playboy Priest” Slept With Parishioner

Written by ERIK MAGRAKEN on August 27, 2020. Posted in Uncategorized.

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, ordering a “playboy priest” along with the Roman Catholic Bishop of the Diocese of Kamloops to pay over $800,000 in damages as a result of a sexual relationship between the priest and the Plaintiff parishioner dating back to the 1970’s.

In this week’s case (Anderson v. Molon) the Plaintiff was employed as an elementary school teacher at a Catholic school in Kamloops, BC. The Defendant at that time an assistant pastor living in the rectory at the same parish.

After the Plaintiff’s father died she sought “comfort and solace” from the Defendant. Instead a sexual relationship formed which the court summarized as follows:

Adult Who Directed Assault of 14 Year Old High School Student Ordered to Pay over $479,000 in Damages

Written by ERIK MAGRAKEN on August 24, 2020. Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages just over $479,000 following an assault by the then 45 year old Defendannt against a 14 year old Plaintiff.

In today’s case (Siegerist v. Tilton) the Plaintiff suffered serous injuries after an assault orchestrated by the Defendant. The circumstances of the beating were summarized as follows:

[1] On April 15, 2009, the plaintiff, Riley Siegerist, was assaulted moments after he left the grounds of his high school in Delta, B.C. to walk home. Mr. Siegerist was 14 years old and a grade 9 student at that time. Acting on the instruction of the defendant, Michael Tilton, two adult males, one or both wielding telescopic metal batons, jumped out of a vehicle driven by Mr. Tilton, ran after Mr. Siegerist, and physically assaulted him. When they paused at Mr. Tilton’s instruction, Mr. Siegerist was physically assaulted by Mr. Tilton’s eldest son, M.T. Mr. Tilton was approximately 45 years old at that time.

[2] When A.S., a student standing nearby, tried to prevent Mr. Tilton from joining in the assault, Mr. Tilton head-butted him. Indeed, according to Mr. Tilton, after his son assaulted Mr. Siegerist, Mr. Tilton walked over to Mr. Siegerist and said words to the effect, “Are we even now?”

The Defendant was criminally convicted of two counts of assault causing bodily harm. In the civil trial he unsuccessfully attempted to deny liability.

The assault caused serious physical and psychological injuries. In assessing global damages at just over $479,000 including non-pecuniary damages of $125,000 Mr. Justice Walker provided the following summary of the injuries:

“Broad” Non Disparagement Clause Makes Settlement Agreement “Unjust to Enforce”

Written by ERIK MAGRAKEN on August 20, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, finding that the settlement of a personal injury claim could be set aside given the inclusion of a broad non disparagement clause.

In today’s case (Wannan v. Hutchison) the Plaintiff sued for damages for injury and loss she alleges to have suffered as a result of naturopathic treatments performed on her by the defendant. In the course of the lawsuit the Defendant presented a formal settlement offer which the Plaintiff, through her counsel, accepted. As part of the settlement a release had to be signed which included a confidentiality and non-disparagement clause. After accepting the offer the Plaintiff objected to the broad language contained in the non disparagement clause as it prevented her from voicing her concerns about the treatments she received.

The Defendant brought an application to enforce the settlement. The court rejected this finding that “that this is one of those rare cases in which it would be unjust to enforce the agreement.”. In refusing to enforce the settlement Madam Justice Murray provided the following reasons:

Soccer Player Sentenced Following On-Field “Sucker Punch” Leading to Assault Conviction

Written by ERIK MAGRAKEN on August 20, 2020. Posted in Uncategorized.

Both civil and even criminal repercussions occasionally arise following recreational and even professional sporting assaults in Canada. Reasons for sentencing were published this week by the BC Provincial Court highlighting a case of the latter.

In this week’s case (R v. Miletic) the Defendant sucker punched a fellow competitor during an adult league recreational soccer game in New Westminster, BC. The punch “broke the victim’s orbital bone and caused him negative longer-term effects“. At trial the Defendant was convicted of assault causing bodily harm.

The Court summarized the circumstances of the offence as follows:

ICBC Psychiatric Expert Rejected As Not “Useful or Reliable”

Written by ERIK MAGRAKEN on August 18, 2020. Posted in Uncategorized.

Adding to this site’s archived case summaries rejecting expert evidence for improper bias or advocacy reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding an expert opinion by an ICBC expert deserved “limited, if any weight” for lacking usefulness or reliability.

In today’s case (Millar v. Wasden) the Plaintiff was involved in a 2013 collision. Fault was admitted by the Defendant. The crash caused longlasting and disabling physical and psychiatric injuries. In the course of the lawsuit ICBC retained a psychiatrist who provided the court with opinion evidence minimizing the connection of the collision to the plaintiff’s injuries. In rejecting this evidence Mr. Justice Voith provided the following criticism: