Author: ERIK MAGRAKEN

When a Two Year Limitation Period is Actually Three

Written by ERIK MAGRAKEN on July 18, 2019. Posted in BCSC Civil Rule 6.

In British Columbia many legal claims are subject to a two year limitation period. Once a lawsuit is started in the BC Supreme Court a Plaintiff has a year to serve the claim on the Defendants being sued. This period, totalling potentially three years, is considered when adding new parties to an existing lawsuit as demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Jamal v. Young) the Plaintiff was involved in a series of collisions and sued for damages. The Plaintiff sought to add more parties to one of the claims beyond the expiration of the two year limitation period. The application was opposed with the Defendants arguing the passage of time and limitation period was prejudicial. The Court granted the application noting the relevant period to consider prejudice in these circumstances is three years. Master Elwood provided the following useful summary of the law:

Diminished Housekeeping Capacity Claim Assessed for “Fastidious Housekeeper”

Written by ERIK MAGRAKEN on July 18, 2019. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for diminished housekeeping capacity for a plaintiff with ‘fastidious’ housekeeping standards.

In today’s case (Broomfield v. Lof) the Plaintiff was injured in a 2014 rear end collision. Liability was admitted. The crash resulted in a variety of injuries the most serious of which were chronic depression and somatic symptom disorder. These resulted in a period of total disability followed by the Plaintiff being able to return to work but on a reduced basis.

The Plaintiff had restrictions in her housekeeping abilities and these were medically supported. The Defendant opposed damages for diminished housekeeping capacity in part because the plaintiff admitted that “she was able to do what she wanted if she pushed through the pain“. Despite this admission the court found the evidence justified damages for diminished housekeeping capacity and awarded just over $100,000 for past and future losses. In reaching this assessment Madam Justice Young provided the following reasons:

$130,000 Non-Pecuniary Assessment for Chronic Depression and Somatic Symptom Disorder

Written by ERIK MAGRAKEN on July 18, 2019. Posted in ICBC Psychological Injury Cases, Uncategorized.

Adding to this site’s archives of psychiatric injury assessments, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic depression and somatic symptom disorder.

In today’s case (Broomfield v. Lof) the Plaintiff was injured in a 2014 rear end collision. The impact was “significant” and the Defendant admitted fault.

“Little Weight” Given to ICBC Expert Witness With “Lack of an Open Mind”

Written by ERIK MAGRAKEN on July 17, 2019. Posted in Uncategorized.

Adding to this site’s archives of expert witnesses being judicially criticized for advocacy, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, expressing reservations about the reliability of an ICBC retained expert who “became somewhat combative during cross-examination” downplayed the Plaintiff’s subjective reports of pain and showed a “lack of an open mind“.

In today’s case (Luck v. Shack) the plaintiff was injured in a 2014 collision that the Defendant accepted fault for. The crash resulted in chronic soft tissue injuries and myofascial pain syndrome. In the course of the lawsuit the Defendant retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and their relationship to the crash. In concluding that “little weight” should be given to this doctor’s opinion Madam Justice MacDonald provided the following comments:

$150,000 Non-Pecuniary Assessment for Permanent Partly Disabling Neck and Shoulder Injuries

Written by ERIK MAGRAKEN on July 15, 2019. Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Whiplash Cases.

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

In today’s case the Plaintiff was involved in a 2014 rear end collision. Fault was admitted by the Defendant. The Plaintiff sustained a variety of injuries including chronic headaches, neck and shoulder injuries. These had a poor prognosis and were expected to be permanently partly disabling in her occupation as a kinesiologist. In assessing non-pecuniary damages at $150,000 Madam Justice Winteringham provided the following reasons:

No Mistrial For “Inapropriate” Comments to Jury Where Corrective Instruction Will Do

Written by ERIK MAGRAKEN on July 11, 2019. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, denying a mistrial request based on inappropriate closing submissions to a jury.

In today’s case (Johal v. Johal) the Plaintiff was injured in a collision and sued for damages. The court noted that throughout his closing submissions, plaintiff’s counsel made several references to the fact the defendants did not call a case. These included:

$140,000 Non-Pecuniary Assessment for Chronic SUNCT Headaches

Written by ERIK MAGRAKEN on July 11, 2019. Posted in ICBC Chronic Pain Cases, ICBC Headache Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a rare headache disorder following two vehicle collisions.

In today’s case (Erickson v. Saifi) the Plaintiff was injured in two collisions and sued for damages. Liability was established. The crashes resulted in chronic SUNCT headaches along with soft tissue injuries. The prognosis for meaningful recovery was poor. In assessing non-pecuniary damages at $140,000 Madam Justice Baker provided the following reasons:

$115,000 Non-Pecuniary Assessment for L4-5 Disc Herniation

Written by ERIK MAGRAKEN on July 9, 2019. Posted in ICBC Spine Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for various injuries sustained in a collision including a L4-5 disc herniation with nerve root compression.

In today’s case (Rahemtulla v. Sutton) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for. The crash resulted in a variety of long lasting injuries including a low back disc herniation with nerve compression which required surgical intervention. In assessing non-pecuniary damages at $115,000 Mr. Justice Masuhara provided the following reasons:

ICBC Hit With Double Costs For “Unreasonable Refusal” To Settle Injury Claim

Written by ERIK MAGRAKEN on July 8, 2019. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, ordering ICBC to pay double costs after their ‘unreasonable refusal’ to accept a sensible settlement offer in an injury claim.

In today’s case (Stark v. Bartier) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Plaintiff sought to settle her claim for $70,000 plus costs. ICBC refused to accept. At trial ICBC was ordered to pay almost 80% more with a final judgement of $126,430.

The Plaintiff applied for an order of double costs

Rear-Ended Motorist Found Partly At Fault For Collision

Written by ERIK MAGRAKEN on July 5, 2019. Posted in ICBC Liability (fault) Cases.

As previously discussed, occasionally a motorist who is rear-ended by another can be found liable for the collision. Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, with such a result.

In the recent case (Bay v. Woollard) the Plaintiff struck a vehicle that had, moments prior, struck another vehicle. The middle motorist in the three car pile up was found 25% at fault for the second collision despite being rear-ended. The primary reason for this finding was the Defendant’s failing to brake before the first crash thus depriving the Plaintiff of full notice of the imminent hazard. In reaching a 75/25 split for the impact Mr. Justice Harvey provided the following reasons: