Dental “Failure to Warn” Case Dismissed Where Court Finds Reasonable Person Would Have Consented To Risks

Reasons for judgement were published this week by the BC Court of Appeal finding that no error was made by a trial judge who dismissed a dental surgery negligence claim where risks of the procedure were not adequately canvassed with a patient.

In this week’s case (Warlow v. Sadeghi) the Plaintiff was a patient who underwent dental surgery by the Defendant.  The procedure resulted in an “injured a nerve in Ms. Warlow’s lower right jaw, resulting in permanent and debilitating nerve pain that has altered virtually every aspect of her life.“.  Prior to surgery the Defendant did not adequately inform the plaintiff of this potential risk.  Despite this the trial judge dismissed the claim finding a reasonable patient would have consented had the risk been canvassed.  In dississing the plaintiff’s appeal the BC Court of Appeal provided the following reasons:

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Canadian Court Asserts Jurisdiction in Defamation Lawsuit Against Twitter

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an application to decline jurisdiction of a defamation lawsuit against twitter.

In today’s case (Giustra v. Twitter, Inc.) the Plaintiff brought a lawsuit against Twitter claiming damages and an injunction for defamatory tweets authored by others and relayed on Twitter’s internet platform.  Twitter argued that the lawsuit should be brought in the US and that there the claim was bound to fail as they enjoy the protections of Section 230 of the Communications Decency Act of 1996, 47 USC (1996), which “protects freedom of speech on the internet by providing internet platforms such as Twitter with immunity against liability for tort claims arising from the dissemination of content from third-party users.

The BC Supreme Court was unpersuaded and found to the extent that the tweets were published in Canada, involving a Canadian plaintiff, making personal allegations against that plaintiff and causing harm to him in Canada with the Defendant having over 500,000 users here the Court was firmly within its rights to accept jurisdiction.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

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Congratulations Clawbies2020 Winners and Thank you For the Hall of Fame!

The Canadian Law Blog Awards, which started as a quasi legal marketing blogging tool, have taken on a life of their own and have become a well recognized badge for many contributors in the Canadian legal field for their on line efforts in providing helpful content to the public.

With the awards handed out on New Years Eve the Clawbies pride themselves on being the latest awards of the year.

This morning the 2020 Clawbies were announced. Please check our the full list and follow all the worthwhile legal content providers highlighted there! A lot of great work by great lawyers and other legal professionals.

I was honoured to be ‘retired’ by the Clawbies losing eligibility for future awards by being inducted into their Hall of Fame. Thank you for this. It has been my pleasure to author thousands of articles here over the past decade plus and I have no intention of stopping still.  I am looking forward to all the future Clawbie winners for the great content they create and the creative ways the legal profession will continue to use social media to connect with the public.

BC Covid Limitation Period Suspensions Come to an End in March

Today it was announced that suspended limitation periods for starting a civil or family action or appeal in BC courts will end on March 25, 2021.

Order in Council # 655 was just released and reads as follows:

Executive Council Chambers, Victoria

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that (a) sections 2 and 3 of Appendix 2 of B.C. Reg 199/2020 are repealed, and (b) effective March 25, 2021, item 27 of Schedule 2 of the COVID-19 Related Measures Act, S.B.C. 2020, c. 8, is repealed

The Law Society of BC has just published this notice to the profession:

An early holiday gift! The government has provided advance notice that although the public health state of emergency continues, the suspension of limitation periods for starting a civil or family action or appeal in BC courts will end on March 25, 2021. For clarity, March 25, 2021 is the final end date for the suspension of limitation periods. There is no transition or grace period (90 days or 45 days) after March 25, 2021. March 25, 2021 is the one year anniversary from the date the first ministerial order suspending limitation periods (Ministerial Order M086) was made on March 26, 2020. BC has graciously been afforded the longest suspension of limitation periods of any province in Canada.

While you still have time – don’t wait; file your Notices of Claim and Notices of Appeal now.

See the order and find out more information from the government here. We will provide you with further details in January 2021. Please note that this order does not apply to the other ministerial orders and regulations made under the COVID-19 Related Measures Act.

$60,000 Damages Awarded For Diminished Housekeeping Capacity

Reasons for judgement were published this month assessing damages for diminished housekeeping capacity at $60,000 following chronic collision related injuries.

In the recent case (Ploskon-Ciesla v. Brophy) the Plaintiff was involved in a 2017 collison that the Defendant admitted  fault for.  The collision caused a constellation of physical injuries which negatively impacted the Plaintiff recreationally,, vocationally and domestically.  In assessing $60,000 in damages for diminished housekeeping capacity over and above non-pecuniary damages Mr. Justice Ball provided the following reasons:

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Diminished Earning Capacity Damages Awarded Despite Plaintiff Increasing Earnings Each Year Since Collision

Just because a Plaintiff suffers no past loss of income does not preclude a court from awarding damages for diminished future earning capacity.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Grant v. Ditmarsia Holdings Ltd) the Plaintiff was injured in a 2015 collisions that the Defendants admitted fault for.

The crash caused chronic physical and psychological injuries.  The Plaintiff was  “a hardworking journeyman plumber” and despite his injuries, which had a poor prognosis for full recovery, continued to work and increased his earnings in the years following the crash.  Despite this he expressed concern that in the long term his stoicicism could not continue indefinitely and the injuries would eventually negatively impact his earnings.  The Court agreed.  In assessing damages at $325,000 for future diminished earning capacity Madam Justice Wilkinson provided the following reasons:

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Three Strikes and ICBC’s Out! – Insurer’s Denial of Accelerated Vehicle Depreciation Fails Again

For the third time in one month ICBC has been ordered by the Civil Resolution Tribunal to pay a vehicle owner damages for accelerated depreciation following a vehicle collision.

When a vehicle is damaged in a crash it often suffers a significant loss of market value, even after all reasonable repairs are done.  ICBC chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims.  For the third time in one month the Civil Resolution Tribunal has held ICBC insured driver liable for paying such damages.

In the most recent case (Herriott v. Yuen) the Applicant’s Audi Quattro sustained over $10,000 in damages in a crash that the Respondent admitted fault for.  After the vehicle was repaired both the Applicant’s dealership and an expert appraiser noted there was an accelerated depreciation in the vehicle’s remaining market value.  ICBC denied this claim arguing the vehicle is worth no less than it would be even without such a significant crash.  In rejecting ICBC’s position and ordering damages paid recognizing the accelerated depreciation CRT Vice Chair Andrea Ritchie provided the following reasons:

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ICBC Expert Witness Rejected for “Tailoring His Evidence” For the Insurer

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting and outright criticizing the opinion of an expert physician who routinely is hired by ICBC for defence medical exams.

In today’s case (Moges v. Sanderson) the Plaintiff suffered injuries in three collisions.  The defendants accepted fault for the crashes.  The Plaintiff suffered a variety of physical and psychological injuries as a result.  In the course of the lawsuit ICBC obtained a medico-legal report from a psychiatrist they routinely hire who provided opinion evidence minimizing the connection between any psychological consequences and the collisions.  In rejecting this opinion evidence as being tailored to the defence and evidencing bias Madam Justice Shergill provided the following criticism:

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BC Liberals Promise Hybrid System of ICBC and Private Insurance With Choice of Coverage and Rights

The BC NDP and Green Party voted in mandatory no-fault insurance.  In short this means that later next year, if you or your loved ones are struck by a careless driver and injured you have no right to sue them for your full damages.  Instead you are at the mercy of ICBC to administer a limited selection of ‘no-fault’ benefits and nothing more.  If ICBC does not administer these fairly you do not have the right to take them to court instead being limited to a provincially created tribunal for dispute resolution.

Today the BC Liberals announced their election platform for ICBC noting they will create a hybrid market with both ICBC and private insurers competing for your business.  Their platform apparently will allow ICBC to corner the no-fault market with British Columbians having the choice to buy such limited coverage with ICBC or to buy ‘tort’ coverage with private insurers giving them the right to claim full damages from at fault motorists.

The Liberals’ press release provided the following details:

BC Liberals will open up the market to give British Columbians true choice in auto insurance by ending the ICBC monopoly and letting drivers pick the best rate available to save money.

A BC Liberal Government will:

  • End the ICBC monopoly and give drivers the choice to purchase vehicle damage coverage (collision, comprehensive, specified perils and liability insurance for property damage) direct from the private market.
  • Give drivers the choice to purchase the best rate for accident benefits coverage for bodily harm and injury from either the private market (tort system) or ICBC (no-fault system).
  • Give all new drivers credit for two years of driving experience, increasing to four years if a new driver has completed driver education. This will result in significantly lower premiums for new drivers with clean records who demonstrate safe driving habits and will be available to both new drivers with their own policies and parents with children listed as occasional drivers.
  • Return excessive premiums charged by ICBC during 2020 to their rightful owners- the drivers of BC – this should have been done months ago, as other provinces have already done, but the NDP want to bribe you with your own money to get your votes in this election. Don’t let the NDP take your money and then try to buy your votes to get it back.

Staged Collisions Leading to ICBC Payouts Lead to Civil Fraud Judgment

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding numerous defendants were involved in several staged collisions.

In the recent case (ICBC v. Singh) several defendants were sued for fraud by ICBC to recover money the insurer paid out from the claims.  Much of this was for vehicle damage claims and other various accident benefits.  Injury claims were advanced by some of the parties as well but adjudication of those were put off until the determination of the fraud claims.

In total ICBC paid out over $83,000 plus additional legals costs related to the claims to date.  In finding the collisions staged and ordering repayment of the damages Madam Justice Duncan provided the following reasons:

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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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