Uncategorized – Page 14

“Little Weight” Given To ICBC Experts in Three Cases Released Today

Written by ERIK MAGRAKEN on October 10, 2019. Posted in Uncategorized.

The BC government is making more noise about Rule of Court reforms regarding expert opinion evidence in personal injury cases in an effort to save ICBC money. Their not so subtle message is that Plaintiff’s hire too many experts to prove their claims. If cases released by the BC Supreme Court today are any guide it is ICBC that is in need of reform when it comes to the practice of hiring physicians hoping to refute collision related injuries.

In three separate cases published today by the BC Supreme Court three separate judges found ICBC hired expert opinions deserved “little weight“.

In the first case (Francello v. Cupskey) the Plaintiff was injured in two collisions. ICBC retained a physician who provided opinion evidence minimizing the Plaintiffs injuries in connection to the crash. In finding this opinion deserved “little weight” Mr. Justice Burnyeat provided the following comments:

BC Court of Appeal Upholds Special Costs Award Against Disability Insurer Despite No Litigation Misconduct

Written by ERIK MAGRAKEN on September 23, 2019. Posted in Uncategorized.

Reasons for judgment were published today by the BC Court of Appeal finding that trial judges do have authority to award special costs against litigants even in circumstances where no litigation misconduct occurred.

In today’s case (Tanious v. The Empire Life Insurance Company) the Plaintiff was insured with the Defendant. She became disabled and sought long term disability benefits but the Defendant ‘rejected her claim’. The Plaintiff successfully sued and was awarded damages along with an order of special costs.

The Defendant appealed arguing the judge was wrong in awarding special costs absent litigation misconduct. The BC Court of Appeal disagreed and found that in “exceptional cases” such awards could be justified. In upholding the award the court provided the following reasons:

Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Written by ERIK MAGRAKEN on September 12, 2019. Posted in Uncategorized.

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for. In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis. In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

“Troublesome” ICBC Surveillance Practices Come Under the Judicial Microscope

Written by ERIK MAGRAKEN on September 11, 2019. Posted in ICBC Privacy Issues, Uncategorized.

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

In the recent case (Williams v. Sekhon) the Plaintiff sustained serious and disabling injuries in a 2013 collision that the Defendant accepted fault for. In the defence of the claim the Defendants insurer, ICBC, conducted a ‘troublesome‘ amount of surveillance into the Plaintiff’s life. The Plaintiff requested that special costs be awarded for this. While the court did not go so far as to award special costs Mr. Justice Voith provided the following lengthy comments setting parameters into what is and is not reasonable surveillance:

Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Written by ERIK MAGRAKEN on September 6, 2019. Posted in Uncategorized.

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision. At the time of the crash the Plaintiff took his stepfathers car keys without permission. They lived in the same household. The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle. In the course of the evening the two boys drove around for several hours before the Accident. Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury. A jury found the driver negligent and the plaintiff contributorily negligent. A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent. The latter test was not applicable on these facts. The court was asked whether the household member rule was triggered in these circumstances. The applicable provision of the MVA reads as follows:

Speeding Bus Driver Found Faultless for Collision With Moose

Written by ERIK MAGRAKEN on August 22, 2019. Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a negligence lawsuit against a bus driver who collided with a moose.

In today’s case (Tran v. Anderson) the Defendant was operating a Greyhound bus on June 22, 2011. He was travelling above the posted speed limit. A moose appeared “suddenly out of the foliage to the right of the highway, about 20 feet in front of the bus“. The Court found that the Defendant had no time to react in these circumstances and even if was travelling at the posted speed limit the result would have been the same.

In dismissing the negligence claim Madam Justice Adair provided the following reasons:

$86,000 Non-Pecuniary Assessment for Triggering of Symptoms in Pre Existing Degenerative Spine

Written by ERIK MAGRAKEN on August 20, 2019. Posted in Uncategorized.

Reasons for judgment were published today assessing damages for a collision resulting in various soft tissue injuries coupled with the onset of symptoms in a pre-existing degenerative spine.

In today’s case (Ryan v. Lawson) the Plaintiff was injured in a 2014 collision. The Defendant accepted fault. The crash resulted in a variety of soft tissue injuries many of which recovered. THe crash also resulted in the onset of symptoms in a pre-existing albeit asymptomatic degenerative condition in the Plaintiff’s spine. In assessing non-pecuniary damages at $86,000 Madam Justice Jackson made the following findings:

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:

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: