Author: ERIK MAGRAKEN

Speeding Bus Driver Found Faultless for Collision With Moose

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a negligence lawsuit against a bus driver who collided with a moose.

In today’s case (Tran v. Anderson) the Defendant was operating a Greyhound bus on June 22, 2011.  He was travelling above the posted speed limit.  A moose appeared “suddenly out of the foliage to the right of the highway, about 20 feet in front of the bus“.  The Court found that the Defendant had no time to react in these circumstances and even if was travelling at the posted speed limit the result would have been the same.

In dismissing the negligence claim Madam Justice Adair provided the following reasons:

Continue reading

$125,000 Non-Pecuniary Assessment for Wrist Injury With “Significant Derangement”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a complex wrist injury with chronic limitations.

In today’s case (Sarginson v. Nordquist) the Plaintiff was involved in a 2014 collision.  The Defendant was liable.  The crash resulted in a complicated wrist injury which, despite undergoing several surgeries, did not fully recover and was left with ‘significant derangement’.  Additionally there were some soft tissue injuries and some related psychological injury.  In assessing non-pecuniary damages at $125,000 Madam Justice Winteringham provided the following reasons:

Continue reading

$86,000 Non-Pecuniary Assessment for Triggering of Symptoms in Pre Existing Degenerative Spine

Reasons for judgment were published today assessing damages for a collision resulting in various soft tissue injuries coupled with the onset of symptoms in a pre-existing degenerative spine.

In today’s case (Ryan v. Lawson) the Plaintiff was injured in a 2014 collision.  The Defendant accepted fault.  The crash resulted in a variety of soft tissue injuries many of which recovered.  THe crash also resulted in the onset of symptoms in a pre-existing albeit asymptomatic degenerative condition in the Plaintiff’s spine.  In assessing non-pecuniary damages at $86,000 Madam Justice Jackson made the following findings:

Continue reading

$90,000 Non Pecuniary Assessment for Chronic and Partly Disabling Soft Tissue Injuries

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries with a poor prognosis for recovery.

In today’s case (Sen-Laurenz v. Napoli) the Plaintiff was involved in a 2014 collision which the Defendant accepted fault for.  The Plaintiff was described as a “highly motivated and at that time physically fit 20-year-old plaintiff was attending Capilano University in North Vancouver and was in the early stages of pursuing her career goal to become a medical doctor. “.  The crash resulted in chronic soft tissue injuries which did not fully recover.  The residual symptoms were expected to be present indefinitely.  The injuries impeded her education and delayed her entry into medical school.  In assessing non pecuniary damages at $90,000 Mr. Justice Walker provided the following reasons:

Continue reading

Injury Claim from Tenant Walking Into a Refrigerator Dismissed

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an injury claim arising after a tenant walked into a refrigerator.

In today’s case (Van Hartevelt v. Oita Investments (BC) Ltd.) the Plaintiff was a tenant in an apartment complex owned by the Defendant.  A refrigerator was left in the hallway for several days.  The Plaintiff, who was aware the refrigerator was present, walked into it and allegedly injured his knee.  He sued for damages but the claim was dismissed finding that he was the author of his own misfortune.

In dismissing the claim Mr Justice Funt provided the following reasons:

Continue reading

$100,000 Non-Pecuniary Assessment For Back Pain With Unsuccessful Surgical Intervention

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury sustained as a result of a collision.

In today’s case (Gee v. Bock) the Plaintiff was involved in a 2014 collision.  The Defendant admitted fault.  The crash aggravated and worsened pre-existing back pain to the point of the Plaintiff undergoing disc replacement surgery which proved unhelpful.  He was left with chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Marzari made the following findings:

Continue reading

Somatic Symptom Disorder Not “Too Complex” For Jury Trial

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering whether a claim involving psychological injury was too complex for a jury trial.

In today’s case (Lee v. Averbach) the Plaintiff was involved in two collisions and sued for damages.  The Defendants elected trial by jury.  The Plaintiff argued given the medical evidence the claim was too complex for a jury trial.  The court disagreed and dismissed the Plaintiff’s application to strike the jury notice.  In doing so Master Elwood provided the following reasons:

Continue reading

ICBC Request for Homemaking Benefit Deduction From Jury Award Denied

In recent months ICBC is getting more aggressive in separating part 7 benefits claims and tort claims.  In addition to seeking to settle tort claims while leaving part 7 benefits claims open ICBC also appears to be bringing more applications for post trial deductions of part 7 benefits.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering and rejecting an ICBC request to deduct significant damages from an award for future care.

In today’s case (Canning v. Mann) the Plaintiff was injured in a 2015 collision.  She was rendered totally disabled as a result.  At trial a jury found the Defendant 80% at fault for the crash.   Damages were assessed including substantial damages for future care.  The Defendant brought an application seeking to reduce the award by over $130,000 arguing that an ICBC homemaking benefit is available.  Mr. Justice Basran rejected this argument noting this is a discretionary benefit and the test for securing it was not met.  In dismissing this portion of the application the Court provided the following reasons:

Continue reading

Insurer Hit With $30,000 in Damages for “Mental Distress” For Wrongfully Denying Insurance Benefits

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding an insurance company in breach of contract and ordering them to pay, in addition to wrongfully withheld benefits, damages for “mental distress”.

In today’s case (Gascoigne v. Desjardins Financial Security Life Assurance Company) the Plaintiff was insured with the Defendant.  She became disabled in her own occupation and sought benefits.  The Defendant initially approved the plaintiff’s claim and paid LTD benefits for a short period but later took “the position that the plaintiff is not disabled and it has refused to pay further benefits.“.

The Plaintiff produced medical evidence in support of her claim.  The Defendant did not have any independent medical exams contradicting this evidence and instead relied on a medical consultant whose evidence the Court criticized as amounting “to little more than generic opinions unsupported by the evidence”.

In ordering that the Defendant pay damages for ‘mental distress’ for wrongfully denying insurance benefits Mr. Justice Skolrood provided the following reasons:

Continue reading

Court Declines to Order Double Costs After Jury Dismisses Injury Claim Based on Liability

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, demonstrating the discretionary nature of double costs awards following the dismissal of a personal injury claim.

In last week’s case (Findlay v. George) the Plaintiff was involved in a significant 2013 collison.  The crash left the defendant motorist dead at the scene.  The Plaintiff  “attempted to assist with the rescue and resuscitation of the defendant at the scene and, in the result, suffers from post-traumatic stress disorder “.

The Plaintiff’s damages were potentially significant with the Court noting “given the commonality of the medical evidence, damages could have reached seven figures.”.

Prior to trial ICBC provided a formal settlement offer of $80,000.  The Plaintiff declined and proceeded to trial where the claim was dismissed based on liability.  ICBC sought double costs.  Mr. Justice Harvey refused to grant these noting costs awards are discretionary and given the potential damages at play and further some evidence where contributory negligence could have been established it was reasonable for the Plaintiff to proceed to trial in the face of this offer.  In declining to award double costs the Court provided the following reasons:

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