Author: ERIK MAGRAKEN

$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:

Somatic Symptom Disorder Not “Too Complex” For Jury Trial

Written by ERIK MAGRAKEN on August 7, 2019. Posted in BCSC Civil Rule 12.

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:

ICBC Request for Homemaking Benefit Deduction From Jury Award Denied

Written by ERIK MAGRAKEN on August 2, 2019. Posted in Cost of Future Care Cases, ICBC No-Fault (Part 7) Benefits.

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:

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

Written by ERIK MAGRAKEN on July 30, 2019. Posted in Uncategorized.

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:

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

Written by ERIK MAGRAKEN on July 29, 2019. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

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:

$120,000 Non-Pecuniary Assessment for TMJ and Trigeminal Neuralgia

Written by ERIK MAGRAKEN on July 26, 2019. Posted in ICBC Dental Injury Cases.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic jaw injury suffered in a vehicle collision.

In the recent case (Tomas v. Sticha) the Plaintiff was injured in a 2006 collision that the Defendant accepted fault for. The crash led a variety of soft tissue injuries along with TMJ syndrome and trigeminal neuralgia. The symptoms persisted to the time of trial. In assessing non-pecuniary damages at $120,000 Mr. Justice Tammen provided the following reasons:

$65,000 Non-Pecuniary Assessment for Chronic Intermittent Soft Tissue Injuries

Written by ERIK MAGRAKEN on July 23, 2019. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Whiplash Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in a vehicle collision.

In today’s case (Juelfs v. McCue) the Plaintiff was involved in a 2014 collision that the Defendants accepted fault for. The crash resulted in a variety of injuries some of which continued to linger to the time of trial and had a poor prognosis for full recovery. In assessing non-pecuniary damages at $60,000 Mr. Justice Riley made the below findings and provided the following reasons:

Occupier Not Liable for “Sudden, Random, and Apparently Unprecedented Act of Violence” By Customer

Written by ERIK MAGRAKEN on July 22, 2019. Posted in Occupier's liability claims.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a lawsuit following a customer on customer assault at a commercial establishment.

In today’s case (Tanaka v. London Drugs Limited) the Plaintiff was shopping at London Drugs when another customer suddenly and unexpectedly punched the Plaintiff in the face knocking him unconscious. The assailant remained unidentified. The Plaintiff argued London Drugs should be vicariously liable for the assault either based on the principles of Negligence of Occupier’s Liability legislation. In dismissing the claim and finding there should be no vicarious liability in the face of a “sudden, random, and apparently unprecedented act of violence” Madam Justice Horsman provided the following reasons: