Author: ERIK MAGRAKEN

Plaintiff Awarded Costs Despite Jury Awarding Damages Far Less than ICBC Formal Setttlement Offer

Written by ERIK MAGRAKEN on June 18, 2020. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, dismissing a defence application for costs and awarding a Plaintiff full costs despite receiving a jury award substantially smaller than a pre trial formal settlement offer.

In today’s case (Duarte v. McMillan) the Plaintiff was injured in a 2016 collision that the Defendant accepted fault for. The matter proceeded to trial by Jury, an election made by ICBC on the Defendants behalf.

Prior to trial the Plaintiff made a formal settlement offer for $175,000. The Defendant made several formal offers with the highest being $88,000 plus costs. At trial the jury awarded far less with global damages being assessed at $22,000 being comprised of $7,300 for costs of future care and loss of homemaking capacity and $14,700 for non-pecuniary damages.

ICBC sought to have the Plaintiff pay costs. The court declined and instead awarded the Plaintiff full costs finding with the evidence available it was reasonable to reject the settlement offer and proceed to trial. In reaching this decision Madam Justice McDonald provided the following reasons:

BC Supreme Court Strikes Jury So Injury Trial Can Proceed

Written by ERIK MAGRAKEN on June 17, 2020. Posted in Uncategorized.

In the wake of the Covid-19 Pandemic one of the many directions of the BC Supreme Court was that jury trials could not proceed for the time being creating a balancing of interests between trials proceeding in a timely fashion vs the right of a party to have their preferred mode of trial.

Today reasons for judgement were pronounced considering this direction and ultimately striking a civil jury desired by a Defendant in a personal injury claim.

In today’s case (Cheung v. Dhaliwal) the Plaintiff was injured in a 2016 collision. The claim was set for trial on June 22, 2020. Both liability and quantum were at issue. The Defendant desired trial by jury which would have resulted in an adjournment. The plaintiff brought an application to strike the jury notice so it could proceed on the date set. In finding the prejudice to the Plaintiff in adjournment outweighed the prejudice to the Defendant by having a judge alone trial Master Vos provided the following reasons:

Browne v. Dunn Not Violated Where It is “Obvious That The Cross‑Examiner Intends To Impeach The Witness’s Testimony”

Written by ERIK MAGRAKEN on June 16, 2020. Posted in Civil Procedure.

Today reasons for judgment were published by the BC Court of Appeal upholding a trial decision finding a motorist in breach of his insurance coverage due to impairment. In doing so the Court outlined limitations on the successful use of the Rule in Browne v. Dunn.

The rule in Browne v. Dunn generally requires that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross‑examination while he or she is testifying.

In today’s case (Hamman v. ICBC) the Appellant caused personal injuries and property damage in a motor vehicle collision. ICBC denied coverage arguing he was impaired. Following the collision various evidence was gathered documenting the appellants possible impairment. At trial ICBC relied on the evidence of a Sgt. who “made observations of the appellant consistent with impairment“. The notes of this Sgt. were shared with the appellant prior to trial.

During the course of trial the appellant testified and in cross examination the Sgt.’s observations were not put to him for comment. He argued this violated the rule in Browne v. Dunn. The BC Court of Appeal disagreed noting in some cases it is so obvious that testimony impeachment is in play that the rule is not violated. In reaching this conclusion the court provided the following reasons:

No Adjournment For Unilaterally Scheduled Trial During Defence Counsels Possible Vacation Time

Written by ERIK MAGRAKEN on June 12, 2020. Posted in BCSC Civil Rule 12.

Reasons for judgement were published today dismissing an adjournment application for a trial that was unilaterally set down during a time that opposing counsel kept free for a possible vacation. In part the Court noted that the vacation plans may very well be off due to the Covid-19 pandemic.

In today’s case (Henderson v. Fisher) the Plaintiff claimed damages for injuries sustained in a collision. The matter was set for trial on January, 2020 but this was adjourned because no judge was available. The parties could not agree on a date to reset the trial for. The Plaintiff unilaterally set the matter down for September, 2020, a month that the Defence lawyer booked off “for a personal vacation out of the country“. An application to adjourn was dismissed with the Court noting the vacation plans may very well be thwarted due to Covid19.

In dismissing the application Mr. Justice Branch provided the following reasons:

Motorist Who Had Seizure At Fault For Crash for Failing to Take Medication

Written by ERIK MAGRAKEN on June 12, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a motorist solely liable for a multiple vehicle collision after losing control due to a seizure. While there can sometimes be no negligence in such a case here the Court found the Defendant failed to take prescribed medication and it was negligent for him to be operating his vehicle in the circumstances.

In today’s case (Goronzy v. Mcdonald) the Defendant was driving northbound across a bridge. Before reaching the crest of the south side of the bridge, he suffered a grand mal seizure, crossed through the yellow plastic pylons that separated the north and south bound lanes, and struck a taxi, as it travelled southward in the left lane.

It was alleged that the Defendant was not taking his medication contrary to medical advice and should have known he should not have been driving and should have foreseen a grand mal seizure. The Court agreed. In finding him liable for the crash Madam Justice Humphries provided the following reasons:

10% and 15% Contributory Negligence Findings for Failure to Wear a Seatbelt

Written by ERIK MAGRAKEN on June 12, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allocating contributory negligence to plaintiffs who were injured in a vehicle collision without their seatbelt.

In today’s case (Goronzy v. Mcdonald) a multi vehicle collision occurred. Two of the plaintiffs who sustained injuries were not wearing a seatbelt and, as a result, were found partly at fault for their own injuries. In particular the driver of a taxi was found 10% contributorily negligent and his rear seat passenger 15%.

In reaching these differing percentages Madam Justice Humphries provided the following reasons:

ICBC Expert that Testified “he could not have been in error” Rejected by BC Supreme Court

Written by ERIK MAGRAKEN on June 11, 2020. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, assessing damages for chronic pain and anxiety following a vehicle collision.

In the course of the claim ICBC’s expert witness whose opinion was “predicated on inaccurate and critical factual assumptions” was rejected.

In the recent case (Nadeau v. Toulmin) the Plaintiff was involved in a 2016 collision. The crash resulted in chronic pain and anxiety. In the course of litigation ICBC retained a physician who provided opinion evidence minimizing the plaintiff’s injuries and their connection to the collision. In finding that the court was “unable to give his opinions any weight” the following critical reasons were provided by Mr. Justice Walker:

BC Passes Order Giving Sporting Organizations Immunity From Covid Lawsuits

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

Today the BC Government passed Ministerial Order M183 which gives certain sporting organizations limited immunity to certain covid-19 related lawsuits. Suits can still be brought in cases of gross negligence.

The full order reads as follows:

PROTECTION AGAINST LIABILITY FOR SPORTS (COVID-19) ORDER

Definitions 1 In this order:

“Act” means the Emergency Program Act;

“disability sport organization” means a non-profit society operating with a sporting purpose that is responsible for the organization, growth or development of a disability sport or a group of disability sport disciplines;

“emergency and public health guidance”, in relation to an organized sport activity, means any of the following with respect to the COVID-19 pandemic: (a) an order made under the Act; (b) an instruction or order of a health officer, as defined in the Public Health Act; (c) guidelines of the British Columbia Centre for Disease Control; (d) guidelines of the Public Health Agency of Canada; (e) guidelines published on a website maintained by or on behalf of the government; (f) guidelines of a health authority; (g) guidelines of a sport organization with respect to organizing, administering, facilitating or providing the organized sport activity; (h) guidelines of the viaSport British Columbia Society issued in 2020 relating to the return to sports;

“exposed”, in relation to SARS-CoV-2, means to have been in contact with, or near, a person or thing that is or may be infected with SARS-CoV-2, in such a manner as to be at risk of being infected with SARS-CoV-2;

“health authority” means (a) a regional health board designated under the Health Authorities Act, (b) the First Nations Health Authority, or (c) the Provincial Health Services Authority;

“local sport organization” means a non-profit society operating with a sporting purpose that administers sport at a local level;

“multi-sport organization” means a non-profit society operating with a sporting purpose that leads or coordinates the delivery of services to other organizations;

“organized sport activity” means an amateur sport or physical activity in which a number of persons are engaged in an organized way and that is organized, administered, facilitated or provided by a sport organization;

“provincial sport organization” means a non-profit society operating with a sporting purpose that is responsible for the regulation, governance and development of all areas and levels of a sport within the Province;

“sport organization” means (a) a disability sport organization,(b) a local sport organization, (c) a multi-sport organization, or (d) a provincial sport organization.

Application

2 This order applies during the period that starts on the date this order is made and ends on the date on which the last extension of the declaration of a state of emergency made March 18, 2020 under section 9 (1) of the Emergency Program Act expires or is cancelled.
Reliance on emergency and public health guidance

3 (1) A sport organization, or a director, officer, employee or volunteer of a sport organization, is not liable for damages resulting, directly or indirectly, from an individual being or likely being infected with or exposed to SARS-CoV-2 as a result of the organization, administration, facilitation or provision of an organized sport activity if, at the relevant time, the sport organization, or director, officer, employee or volunteer of the sport organization, (a) was organizing, administering, facilitating or providing the organized sport activity in accordance with all applicable emergency and public health guidance, or (b) reasonably believed that the organization, administration, facilitation or provision of the organized sport activity was in accordance with all applicable emergency and public health guidance.

(2) Subsection (1) does not apply to a sport organization, or a director, officer, employee or volunteer of the sport organization if, in organizing, administering, facilitating or providing the organized sport activity, that sport organization or director, officer, employee or volunteer was grossly negligent.

Insurance Medical Expert Rejected as “Combative, Argumentative and Arrogant”

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

Reasons for judgement were published today by the BC Supreme Court rejecting and harshly criticising the opinion evidence of doctor hired to provide a defence medical opinion in a personal injury claim.

In today’s case (Chavez-Babcock v. Peerens) the Plaintiff was involved in a 2014 collison that the Defendant admitted fault for. The crash resulted in chronic soft tissue injuries. In the course of the lawsuit the Defendants insurer hired an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s symptoms to the crash. In rejecting this opinion and the physicians evidence as combative, argumentative and arrogant Madam Justice Matthews provided the following reasons:

BC Court of Appeal – It Is Negligent To “Not See What’s There To Be Seen”

Written by ERIK MAGRAKEN on June 9, 2020. Posted in ICBC Liability (fault) Cases.

“I never saw the other vehicle before the crash” is rarely a satisfactory answer in absolving a party from liability. Reasons for judgement were published today by the BC Court of Appeal discussing this principle finding that it is reversible legal error not to consider if a party is liable for failing to see something that is there to be seen.

In today’s case (Sharma v. Kandola) the Plaintiff was injured in a two vehicle collision. At the time she was in the process of making a U‑turn from the south to the north side of the street in a school zone. The Defendant, who was travelling behind her, attempted to pass her in the westbound lane. The vehicles collided. The Plaintiff never saw the Defendant prior to the crash.

At trial the Court found the Defendant fully liable for “travelling too close to Ms. Sharma’s car and driving too fast, he failed to keep a proper look out, and he was attempting to pass Ms. Sharma’s vehicle in the westbound lane, an activity prohibited in a school zone“.

The Defendant appealed. The BC Court of Appeal found that the Defendant was largely to blame but the plaintiff also bore some liability for failing to see the Defendant prior to the crash. In reaching this decision the Court provided the following reasons: