Written by ERIK MAGRAKEN on . Posted in Uncategorized.
As readers of this blog know the BC Government recently overhauled the Rules of Court to limit the number of expert witnesses that can be used in personal injury prosecutions. This rule is subject to a constitutional challenge and its future is uncertain. The rule was implemented with the goal of simply saving ICBC money.
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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for personal injuries which included the successful recovery of money spent for CBD oil and medical marijuana to treat chronic pain.
In today’s case (Culver v. Skrypnyk) the Plaintiff was injured in two collisions. These resulted in partly disabling chronic back and leg pain. The treatments attempted over the years included the use of CBD oil and medical marijuana. The Court awarded recovery for the costs of these medications noting they were reasonably incurred special damages. In reaching this conclusion Mr. Justice Davies provided the following reasons:
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Reasons for judgement were published today by the BC Supreme Court, Campbell River Registry, assessing damages for chronic consequences from a head injury.
In today’s case (Mickelson v. Sodomsky) the 50 year old plaintiff was involved in a 2015 T-bone collision. The Defendant admitted liability. The crash resulted in a mild traumatic brain injury and the plaintiff developed post concussion syndrome with a poor prognosis for further recovery. The consequences of the injury were largely disabling. In assessing non-pecuniary damages at $200,000 Mr. Justice Thompson provided the following reasons:
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As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged. The reason for this is quite simple. When a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma. This stigma generally results in a lower resale value.
Written by ERIK MAGRAKEN on . Posted in Uncategorized.
From April 1, 2019 onward BC crash victims have had their rights drastically reduced. One of the key rights stripped from British Columbians is the ability to go to Court.
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Earlier this year the BC Government introduced changes to the BC Supreme Court Civil Rules capping the number of expert witnesses parties in motor vehicle and other injury claims can rely on. The rule change was brought unilaterally without consultation of the Rules Committee.
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Due to our rapidly growing personal injury practice MacIsaac & Company’s head office in Victoria, BC has an opening for an additional litigator.
We are looking for a lawyer with at least 5 years experience prosecuting injury claims.
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In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.
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Earlier this year BC’s Attorney General announced changes to the BC Supreme Court Rules limiting how many expert witnesses litigants can use when prosecuting a personal injury lawsuit arising from a motor vehicle collision. The rule change was brought in without notice and without support from the Rules committee.
The retroactive and without notice restriction was subject to much criticism and judicial challenges were swiftly brought. The Government has backed down and before a judicial challenge was ruled on they amended the rule to delay its application only to trials set from 2020 onward.
The new Order in Council, approved and ordered today, reads as follows:
1 Rule 11-8 (11) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, is repealed and the following substituted:
Transition – exceptions for existing vehicle actions
(11) The following exceptions apply in relation to a vehicle action for which a notice of claim was filed before February 11, 2019:
(a) the limits set out in subrule (3) do not apply (i) to any report of an expert that was served in accordance with these Supreme Court Civil Rules before February 11, 2019, or (ii) to the vehicle action if the trial date set out in the notice of trial filed in relation to the vehicle action is on or before December 31, 2019;
(b) the limits set out in subrule (8) do not apply (i) to amounts that were necessarily or properly incurred for expert opinion evidence before February 11, 2019, or (ii) to the vehicle action in the circumstances referred to in paragraph (a) (ii).
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Although the recent ICBC and BC Government narrative attempts to paint injury claimants in an unreasonable light in reality ICBC often refuses reasonable settlement offers only to be ordered to pay far more at trial. Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, demonstrating such a result.
In the recent case (Moreira v. Crichton) the Plaintiff was injured in a 2013 collision. The Defendant admitted fault. The crash resulted in chronic pain with a poor prognosis. This in turn resulted in real disability and significant past and future medical costs and wage loss. The Plaintiff made a formal settlement offer of $480,000. ICBC refused to pay and the matter proceeded to trial where the Plaintiff’s claim was valued over $800,000. ICBC was ordered to pay double costs for refusing the Plaintiff’s reasonable settlement efforts.
Today the Court assessed these costs at $33,264 and ordered that ICBC pay this over and above the value of the claim. Unreasonable positions by litigants have consequences. Here ICBC was ordered to pay a substantial penalty for refusing to treat the plaintiff fairly. In reaching this assessment of costs Master McDiarmid provided the following reasons:
[1] This is an assessment of costs following a trial before Mr. Justice Betton. The trial was heard in late January and early February 2018; Betton J.’s Reasons for Judgment were rendered on July 31, 2018 cited at Moreira v. Crichton, 2018 BCSC 1281. The total judgment was $804,914.48.
[2] The plaintiff had offered to settle for $480,000.00 by way of a formal offer to settle on May 23, 2017. In a subsequent hearing in front of Betton J. on December 18, 2018, he ordered that the plaintiff was entitled to costs, including double costs after May 23, 2017…
[94] That totals 270 units at $110.00 per unit for a subtotal of $29,700.00, plus 7% PST of $2,079.00 and 5% GST of $1,485.00 for a total of tariff item costs, inclusive of taxes, of $33,264.00. The disbursements on a Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes on disbursements.
[95] The disbursements on that Bill of Costs should reflect my decision, together with the effect of my decision on applicable taxes.
[96] If required, plaintiff’s counsel may submit to me a revised Bill of Costs and certificate, in accordance with these reasons.