Welcome CBC Radio Vancouver Listeners


Yesterday I had the pleasure of being interviewed by CBC Radio’s Jeremy Allingham on the topic of expert witness advocacy in personal injury lawsuits.
For those visiting this site for the first time welcome!  If you are looking for more information on this topic you can click here to access my archived posts detailing judicial criticism of expert witness advocacy in the BC Supreme Court.
 

Welcome "The Verdict" Readers


Last year I had the pleasure of authoring an article addressing social media use by lawyers at the invitation of David Bilinsky, who works as a Practice Management Advisor at the Law Society of BC.
The article has now been published in issue 134 of TLABC’s The Verdict.  For those of you visiting for the first time after reading this article  welcome!    Below are a list of some of my more popular archived topics.  Feel free to browse around and contact me if you have any questions about the topics canvassed in the article.
Facebook Use in BC Personal Injury Litigation
Indivisible Injury Caselaw Comments
Examination for Discovery Caselaw Developments
Judicial Criticism of Expert Witness Advocacy
BC Supreme Court Costs Cases
Mitigation of Damages
Expert Witness and Independent Medical Exam Caselaw Archives
Rule 15 Caselaw Developments
And just for fun, an off-topic post which proved to be the most visited article published here.
 
 

Welcome Lawyers Weekly Readers


Earlier this year I had the pleasure of being interviewed by Donalee Moutlon who authored an article for the Lawyers Weekly addressing obligations of motorists involved in hit and run collisions in BC.  Her article was published in this week’s edition.
For those of you visiting this site after reading this article, welcome!  If you are looking for more on the topic of motorist obligations advancing hit and run injury claims in BC you can click here to access my archived posts.

Welcome CFAX Listeners – Dog Bite Injury Law in BC


Earlier today I had the pleasure of being interviewed by CFAX Radio with respect to lawsuits for compensation as a result of Dog Bite injuries in British Columbia.
For those of you looking for more on this area of law you can click here to read a 2004 decision which provides the following useful overview of the legal principles of scienter and negligence which were discussed in today’s interview:

[] The common law doctrine of scienter differs from negligence in that if the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence.  The requirements for establishing scienter were described by the British Columbia Court of Appeal in Janota-Bzowska v. Lewis[1997] B.C.J. No. 2053.  In that case the Court observed at para. 9 that the owner of a dog can be found liable for an attack in two ways:

First, the owner may be held liable under the doctrine of scienter and second, the owner may be held liable for negligence.  It is important to keep the two separate as they often become intertwined.  They are, however, not the same.

The Court went on at para. 20 to describe the doctrine of scienter in this way:

The law with respect to the doctrine of scienter is relatively clear.  The owner of a dog which bites another will not be liable simply for being the owner.  Liability will only attach under the doctrine if the three conditions set forth in the Neville decision have been satisfied.  In other words, the plaintiff (not the defendant) must establish:

i)   that the defendant was the owner of the dog;

ii)  that the dog had manifested a propensity to cause the type of harm occasioned; and

iii) that the owner knew of that propensity.

Some provinces now have legislation which modifies the common law of scienter but, since the repeal of the Animals Act in 1981, British Columbia does not and the common law applies untrammelled by statutory enactment.

[] At para. 23 of the judgment, the Court of Appeal described the requirements for negligence in the context of a dog attack in this way:

To succeed in an action based on negligence against Holtzman, the plaintiff must prove, on a balance of probabilities that:

(a)  Holtzman knew, or ought to have known, that Boomer was likely to create a risk of injury to third persons, including the plaintiff; and

(b)  Holtzman failed to take reasonable care to prevent such injury.  …

[] It can be seen that there are two important differences between liability based on scienter and liability based on negligence.  If the requirements of scienter are established, liability is absolute, and the plaintiff is not required to show breach of a standard of care.  On the other hand, to establish scienter, the plaintiff must show both that the dog manifested a propensity to cause the type of harm which occurred and also that the owner knew of that propensity.  It thus appears that for scienter, the mental element is based on a subjective test:  the plaintiff must establish that the defendant actually knew of the dog’s propensity to cause the relevant type of harm.  This is in contrast to liability based on negligence, where an objective test applies.  That is, for negligence it is sufficient if the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, and failed to take reasonable care to prevent the injuries.

Welcome Supreme Advocacy Newsletter Readers


To my pleasant surprise this blog was named “website of the week” in Eugene Meehan’s Supreme Advocacy newsletter.
For those of you visiting this site for the first time welcome!  I canvass Canadian personal injury legal developments here with a particular focus on British Columbia and claims involving the Insurance Corporation of BC (ICBC).
For my regular readers not familiar with Mr. Meehan’s newsletter it is worth checking out.   It provides ‘hot off the presses‘ coverage of decisions from the Supreme Court of Canada along with other useful material.  You can subscribe to his newsletter here.

Welcome Top MMA News Readers


Keith Grienke, owner of topmmanews.com kindly republished my article discussing the implications of Bill S-209 (the Bill seeking to formally legalize MMA in Canada) and the potential consequences this will have on amateur MMA contests.  I want to thank Keith for bringing a larger, and more targeted, audience to this issue.
For those of you visiting here for the first time, welcome.  I write about Canadian MMA Legal Developments at the Canadian MMA Law Blog and you can visit there for more details.

Welcome Globe and Mail Readers


Earlier this week I had the pleasure of being interviewed by Lisa Ostrikoff who authored an article for the Globe and Mail’s Report on Business regarding industry specific business use of social media.  You can click here to read her article.
For those of you visiting this site after reading this article, welcome!  While my business is injury litigation (not business consulting) I’m happy, time permitting, to share my views with respect to social media from a legal business perspective.  Feel free to contact me if you have any questions.

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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

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