Author: ERIK MAGRAKEN

Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Written by ERIK MAGRAKEN on September 6, 2019. Posted in Uncategorized.

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision. At the time of the crash the Plaintiff took his stepfathers car keys without permission. They lived in the same household. The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle. In the course of the evening the two boys drove around for several hours before the Accident. Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury. A jury found the driver negligent and the plaintiff contributorily negligent. A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent. The latter test was not applicable on these facts. The court was asked whether the household member rule was triggered in these circumstances. The applicable provision of the MVA reads as follows:

ICBC Hit With Double Costs Due To Inadequate Settlement Efforts

Written by ERIK MAGRAKEN on September 4, 2019. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published today ordering double costs to a plaintiff who was awarded damages substantially above his settlement request following a vehicle injury.

In today’s case (Godbout v. Notter) the Plaintiff was injured in a a vehicle collision that the Defendant was at fault for. Following an unsuccessful mediation the Plaintiff provided a formal offer to settle his claim for $300,000. ICBC refused and offered 1/3 of this. At trial the Plaintiff was awarded damages totalling $583,199.36 for non-pecuniary loss, past wage loss, future lost earnings, future care costs, loss of housekeeping capacity and special damages.

The Plaintiff was then awarded double costs for ICBC’s unreasonable refusal to accept the Plaintiff’s settlement offer. In finding double costs were warranted Mr. Justice Jenkins provided the following reasons:

‘Inappropriately Dismissive” and “Close-Minded” Defense Doctor Opinion Judicially Criticized

Written by ERIK MAGRAKEN on September 4, 2019. Posted in ICBC Shoulder Injury Cases.

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today finding a defence doctor’s opinion to be “of little value” in an injury claim.

In today’s case (Lambert v. Tiwana) the plaintiff was involved in two collisions and claimed damages. The Defendants admitted fault in both claims. The Plaintiff suffered a myofascial shoulder injury with persistent symptoms. In the course of the lawsuit the Defendants had the Plaintiff examined by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries. In finding the ‘close-minded‘ and ‘inappropriately dismissive‘ opinion of little value Madam Justice Adair provided the following reasons:

Pre Accident Medical Records Are Not Producible “as of right, or on demand” in Injury Claims

Written by ERIK MAGRAKEN on August 28, 2019. Posted in BCSC Civil Rule 7.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, providing useful comments on disclosure obligations of personal injury litigants under the BC Supreme Court Civil Rules.

In today’s case (Holmberg v. McMullen) the Plaintiff suffered “significant injuries” as a result of two vehicle collisions and sued for damages. In litigation the Defendants requested various pre accident medical records and pharmacological records arguing that when serious injuries are alleged such documents must be produced. A Master disagreed and dismissed the application. The Master’s decision was appealed which was also dismissed.

In noting that parties have no obligation to produce documents not in their possession or control in the first phase of document production and further that pre accident medical records are not producible on demand and as of right even in the face of serious injuries being disputed on the pleadings Mr. Justice Johnston provided the following reasons:

Speeding Bus Driver Found Faultless for Collision With Moose

Written by ERIK MAGRAKEN on August 22, 2019. Posted in Uncategorized.

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:

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

Written by ERIK MAGRAKEN on August 21, 2019. Posted in ICBC Wrist Injury Cases.

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:

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

Written by ERIK MAGRAKEN on August 20, 2019. Posted in Uncategorized.

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:

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

Written by ERIK MAGRAKEN on August 19, 2019. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

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:

Injury Claim from Tenant Walking Into a Refrigerator Dismissed

Written by ERIK MAGRAKEN on August 16, 2019. Posted in Occupier's liability claims.

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:

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

Written by ERIK MAGRAKEN on August 14, 2019. Posted in ICBC Spine Injury Cases.

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: