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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$65,000 Non Pecuniary Assessment for Fractured Collarbone and Anxiety

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a fractured collarbone sustained in a collision.

In today’s case (Folk v. Folk) the Plaintiff was 5 years old and riding as a passenger in a vehicle involved in a collision which caused a fractured collarbone.  This injury healed fully in 2 months.  The Plaintiff also suffered anxiety for several years following the crash.  The Plaintiff attributed various other symptoms to the crash but the Court found causation could not be established.  In assessing non pecuniary damages at $65,000 for the collision related injuries Madam Justice Gropper provided the following reasons:

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Kamloops Catholic Church and Priest Ordered to Pay Over $800,000 After “Playboy Priest” Slept With Parishioner

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, ordering a “playboy priest” along with the Roman Catholic Bishop of the Diocese of Kamloops to pay over $800,000 in damages as a result of a sexual relationship between the priest and the Plaintiff parishioner dating back to the 1970’s.

In this week’s case (Anderson v. Molon) the Plaintiff was employed as an elementary school teacher at a Catholic school in Kamloops, BC.   The Defendant at that time an assistant pastor living in the rectory at the same parish.

After the Plaintiff’s father died she sought “comfort and solace” from the Defendant.  Instead a sexual relationship formed which the court summarized as follows:

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Adult Who Directed Assault of 14 Year Old High School Student Ordered to Pay over $479,000 in Damages

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages just over $479,000 following an assault by the then 45 year old Defendannt against a 14 year old Plaintiff.

In today’s case (Siegerist v. Tilton) the Plaintiff suffered serous injuries after an assault orchestrated by the Defendant.  The circumstances of the beating were summarized as follows:

[1]            On April 15, 2009, the plaintiff, Riley Siegerist, was assaulted moments after he left the grounds of his high school in Delta, B.C. to walk home. Mr. Siegerist was 14 years old and a grade 9 student at that time. Acting on the instruction of the defendant, Michael Tilton, two adult males, one or both wielding telescopic metal batons, jumped out of a vehicle driven by Mr. Tilton, ran after Mr. Siegerist, and physically assaulted him. When they paused at Mr. Tilton’s instruction, Mr. Siegerist was physically assaulted by Mr. Tilton’s eldest son, M.T. Mr. Tilton was approximately 45 years old at that time.

[2]            When A.S., a student standing nearby, tried to prevent Mr. Tilton from joining in the assault, Mr. Tilton head-butted him. Indeed, according to Mr. Tilton, after his son assaulted Mr. Siegerist, Mr. Tilton walked over to Mr. Siegerist and said words to the effect, “Are we even now?”

The Defendant was criminally convicted of two counts of assault causing bodily harm.  In the civil trial he unsuccessfully attempted to deny liability.

The assault caused serious physical and psychological injuries.  In assessing global damages at just over $479,000 including non-pecuniary damages of $125,000 Mr. Justice Walker provided the following summary of the injuries:

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“Broad” Non Disparagement Clause Makes Settlement Agreement “Unjust to Enforce”

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, finding that the settlement of a personal injury claim could be set aside given the inclusion of a broad non disparagement clause.

In today’s case (Wannan v. Hutchison) the Plaintiff sued for damages for injury and loss she alleges to have suffered as a result of naturopathic treatments performed on her by the defendant.  In the course of the lawsuit the Defendant presented a formal settlement offer which the Plaintiff, through her counsel, accepted.   As part of the settlement a release had to be signed which included a confidentiality and non-disparagement clause.  After accepting the offer the Plaintiff objected to the broad language contained in the non disparagement clause as it prevented her from voicing her concerns about the treatments she received.

The Defendant brought an application to enforce the settlement.  The court rejected this finding that “that this is one of those rare cases in which it would be unjust to enforce the agreement.”.  In refusing to enforce the settlement Madam Justice Murray provided the following reasons:

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Soccer Player Sentenced Following On-Field “Sucker Punch” Leading to Assault Conviction

Both civil and even criminal repercussions occasionally arise following recreational and even professional sporting assaults in Canada.  Reasons for sentencing were published this week by the BC Provincial Court highlighting a case of the latter.

In this week’s case (R v. Miletic) the Defendant sucker punched a fellow competitor during an adult league recreational soccer game in New Westminster, BC.  The punch “broke the victim’s orbital bone and caused him negative longer-term effects“.  At trial the Defendant was convicted of assault causing bodily harm.

The Court summarized the circumstances of the offence as follows:

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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!”
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