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Contingency Fees and Catastrophic Infant Claims Discussed

Written by admin on . Posted in Shaken Baby Cases, Uncategorized.

Section 40 of the BC Infants Act requires judicial approval of injury claim settlements involving infants with claims settled at over $50,000.  The approval of legal fees is part of the judicial scrutiny process.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing such a settlement and further setting out a useful chart summarizing previous judicially approved fees.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional “shaken baby” assault.  This resulted in severe traumatic brain injuries requiring one-to-one care on a daily basis for the duration of the child’s life.
A settlement of $13,000,000 was judicially approved.  The decision is worth reviewing in full for Mr. Justice Macaulay’s careful analysis of the factors that need to be considered when approving fees in such claims given the non-binding nature of infant contingency fee agreements.  At the conclusion of the reasons for judgement the Court set out the below useful chart of previously approved infant settlements.


Case

Nature of
Claim

Settlement Amount

Settlement Timing

Legal Fee Sought

Hours Estimated


Fee Awarded

Harrington v Royal Columbia
1995 CanLII 2345 (BCCA)

Medical malpractice

$1.5 million and  costs

3 days < trial

$500,000

Estimate of 800 hours not accepted by
trial judge; 280 hours accepted

$175,000

Richardson v Low
1996 CanLII 571

Medical malpractice (birth case)

$2.27 million

Settled well before trial

$897,750

Court says no basis to estimate time but must be less than 260 hours

$325,000

Cook v
Mission
1996 CanLII 1394

Medical malpractice

$2.6 million

Settled on 1st day of trial

$850,000

Non recorded

$650,000

Adams v Emmott
1997 CanLII 746

Medical malpractice (birth case)

$3 million

Settled Thursday before
Tuesday trial

$725,000

300 hours estimate by Court

$600,000

Chong v
Royal
Columbia
1997 CanLII 4362

Medical malpractice (birth case)

$2.5 million

After 1 week of trial

$750,000

2131.2 hours
for counsel
and 654.9 for paralegals and students

$750,000

Renaerts v Korn
1998 CanLII 4979

Medical malpractice (birth and abandonment; intentional infliction of harm)

$8 million
and
$500,000
costs

Settled weekend before trial (numerous pretrial motions and limitation defence)

$2.2 million

Hours for 3 counsel
valued at $825,000

$1.8 million

Duchene v Woolley
2002 BCSC 1878 (CanLII)

Medical malpractice (birth case)

$3.6 million

Settled 2 days before trial although defendants did not serve liability reports

$1.244 million

167 hours estimated but Court notes more was probably spent

$900,000

Bizove v
Cornish
2003 BCSC 1615 (CanLII)

Medical malpractice (birth case)

$3.566 million

3 days before trial

$750,000

740 hours (3 senior counsel)

$750,000

Makowsky v
Jaron
2004 BCSC
419 (CanLII)

Medical malpractice (birth case)

$3.2 million

4 months before trial but liability ceased to be issue several months before trial

$900,000

136 hours recorded but Court suggests they must have exceeded 200 hours

$600,000

Strachan v
Winder
2005 BCSC 59
(CanLII)

Medical malpractice (birth case)

$4 million

2nd day of 2 week trial

$862,500

Recorded time for 3 senior counsel 484 hours

$800,000

Delaronde v.
HMTQ
2000 BCSC
1626

MCFD shaken baby case

$5.448 million

Settled after 4 weeks of evidence and 3 days of submissions

$1.347 million

None mentioned

$1.347 million

B.M.
(Guardian ad
Litem of)
v R.M.
2011 BCSC 64

MCFD shaken baby case

$5.35 million

Liability trial (8 days) and appeal then settled several months before trial

$1.7 million

Hours valued at $607,320

$1.475 million

Punishing Costs Orders Should Not "Unduly Deter" Meritorious but Uncertain Actions

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Further to my previous posts detailing the potential costs consequences following trials with formal settlement offers in place, reasons for judgement were released last week addressing this topic finding that costs consequences should be applied in an “even-handed” way and further should not unduly deter Plaintiff’s from bringing meritorious, but uncertain claims “because of the fear of a punishing costs order“.
In last week’s case (Currie v. McKinnon) the Plaintiff sustained soft tissue injuries in a collision which substantially recovered within one year.  Prior to trial ICBC made a formal settlement offer of $40,000.  The Plaintiff rejected this offer and proceeded to trial where he was awarded $22,000 in damages.
ICBC applied for double costs from the time of the offer onward.  Madam Justice Adair found that such a result was unwarranted and instead stripped the Plaintiff of post offer costs and disbursements.   In doing so the Court provided the following sensible comments:

[18] I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs.  This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer.  The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant.

[19] In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants.  I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle.

[20] That is not the case here.  In my view, Mr. McKechnie, despite his able arguments, simply did not identify for me how the circumstances here were so exceptional as to justify an award of double costs against Mr. Currie.  While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order…

[36] Having considered all of the factors in this case, I am not satisfied that it would be appropriate to award the defendants double costs as sought by Mr. McKechnie.  I have discussed earlier in these reasons my concerns about how that can have the effect of skewing the procedure in favour of defendants and unfairly pressurize and penalize plaintiffs, and I think that would be the result in this case.  Liability was admitted by the defendants.  Mr. Currie’s case was not dismissed.  Rather, he recovered judgment for non-pecuniary damages in an amount that was greater than what the defendants argued at trial he should recover.

[37] However, in my view, the defendants’ offer to settle cannot be ignored.  That would undermine the purpose behind the rule…

[39] In my view, therefore, the double costs sought by the defendants are neither a fair nor just result.  However, in my view, it is not a fair or just result for Mr. Currie to recover costs after he had had a reasonable opportunity with his counsel to review and consider the defendants’ offer to settle.  I would say that by November 30, 2011, Mr. Currie and his counsel had had a reasonable opportunity to review and consider the defendants’ offer and ask any questions they deemed necessary if they thought clarification was necessary.

[40] In my view, the defendants should not have to pay Mr. Currie’s costs after November 30, 2011.  However, I do not think it a fair result that Mr. Currie should have to pay the defendants’ costs after November 30, 20011, given his success ultimately at trial.

[41] My order then, with respect to costs, is that Mr. Currie will recover his costs and disbursements up to and including November 30, 2011, and that each side bear their own costs thereafter.

Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized. 51 Comments on Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, demonstrating that having a Plaintiff’s claim dismissed for failing to discharge obligations under the BC Supreme Court Rules is a ‘draconian remedy‘ which will not lightly be granted in a personal injury action where liability is admitted.
In the recent case (Breberin v. Santos) the Plaintiff was injured in a 2007 collision.  Fault was admitted by the offending motorist.  In the course of the lawsuit the Plaintiff failed to provide “very basic information” to the Defendants, “refused to obey court rules” and had “been found in contempt of court“.
The Defendants applied to strike the Plaintiff’s claim.  Mr. Justice Willcock noted that, although this was a borderline case and a remedial costs order was appropriate to emphasise “the Court’s concern with respect to the conduct of the Plaintiff” outright dismissal of the claim was too harsh a result in the circumstances.  In dismissing the Defendant’s application the Court provided the following reasons:

[36] The Rules of Court are designed to permit parties to obtain full disclosure of relevant materials far in advance of trial so as to avoid unnecessary litigation, to make or seek admissions, and to settle claims that ought to be settled.  Despite numerous case planning conferences and previous orders in this case, the plaintiff at the most recent case planning conference appeared to appreciate for the first time that she is not entitled to hold medical information in her hands and to refuse to disclose it until she is satisfied with her diagnosis.  She appeared to understand for the first time that it is not open to her to produce only that portion of her medical file that corresponds with her own diagnosis or that which she prefers.

[37] It is difficult to determine whether the plaintiff’s suggestion at the most recent case planning conference that she only now appreciates the nature of her obligations is genuine.  On previous occasions when this Court directed Dr. Breberin to attend in Vancouver for an independent medical examination, gave explicit reasons for doing so, and noted that there was insufficient medical evidence to permit the Court to accede to her argument that she was unable to travel, Dr. Breberin later continued to question the Court’s jurisdiction to make such an order.  She continues to resist attempts to have her attend here for a medical examination. That resistance speaks of an unwillingness to accept the Court’s jurisdiction and authority.

[38] Having said that, I am of the view that dismissal of the claim would not be proportional to the nature of the ongoing default.  Dr. Breberin has now, finally, produced the authorizations for production of medical records and provided them to defence counsel.  She advised me during the course of submissions on May 22, 2012 that she was prepared to permit defence counsel to use the authorizations without attaching any conditions to their use.  She should be satisfied with the implied undertakings as to the confidentiality of evidence obtained on discovery. Defence counsel may now use those authorizations unimpeded by any undertaking or condition other than that implied by law.

[39] The Plaintiff is prepared to attend at a continuation of her examinations for discovery.  She should promptly make arrangements to attend at such an examination once the defendants have obtained the medical records they seek.

[40] She is right to say that there has been no previous order that she attend at an independent medical examination by an orthopedic surgeon.  Given the evidence she herself has filed with respect to the nature of her ongoing complaints, it is my view that it is appropriate for the defendants to seek that she be examined by an orthopedic surgeon, and there will be an order that she attend at an examination by an orthopedic surgeon in Vancouver, at a date to be selected by defence counsel.  If Dr. Breberin is unable to attend on the date selected by defence counsel, she should promptly notify defence counsel, and may apply, within seven days of receipt of the appointment, for an order adjourning the date of her examination to another date available to her.

[41] Once these measures are taken, the defendants will be in a position to more adequately assess the plaintiff’s claim.  The dismissal of an action where there has been an admission of liability, as in in this case, would be a particularly draconian remedy for the contempt that has delayed the defendants acquisition of evidence to which they are entitled. In my view, although this is a borderline case, such a measure would, now be disproportionate to the plaintiff’s conduct.

BC's Electronic Device in Courtroom Policy Soon to be in Force

Written by admin on . Posted in Uncategorized.


Next month the new policy addressing use of electronic devices in BC Courtrooms will come into force.  In short lawyers and “accredited media” will be permitted to “use electronic devices to transmit and receive text” in the BC Supreme Court and BC Provincial Court.
The Court of Appeal is more liberal allowing not just lawyers and media to have this privilege but extending it to “any person“.
You can click here to read the policy in full.

Welcome Supreme Advocacy Newsletter Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized.


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.

$20,000 Non-Pecuniary Assessment for "Mild" Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injury.
In the recent case (Densem v. Sidal) the Plaintiff was involved in two consecutive rear-end impacts with the Defendant.  The defendant was wholly responsible for the first impact although this caused no injury.  There was competing evidence about the particular facts which led to the subsequent collision and the Court ultimately found both parties were equally to blame for this impact.
The Plaintiff suffered from soft tissue injuries to his neck and shoulders as a result of the collision.  He also advanced a claim for a low back injury although the Court found that this was unrelated.  In assessing non-pecuniary damages for the soft tissue injuries at $20,000 Mr. Justice Betton raised some credibility concerns with respect to the Plaintiff and provided the following analysis:

[99] I conclude that the plaintiff suffered soft-tissue injuries to his neck and shoulders in the motor vehicle collision. I do not accept that there has been any low back injury from the motor vehicle collision. Indeed low back injury is not among the list of injuries set out by counsel in his argument.

[100] I conclude that the best evidence of the severity of the soft-tissue injuries that the plaintiff did receive is the plaintiff’s activity level. The plaintiff had returned to a high level of function, including competitive cycling and a rigorous training schedule which included high demand weight training. He had also returned to work, and the evidence suggests that he did so successfully. He was able to perform his employment, which involved long periods of sitting mixed with periodic demanding physical work. This was despite his ongoing back problems which are not a result of the accident.

[101] The credibility issues referenced prompt me to view the plaintiff’s evidence with some caution. It is my conclusion that the plaintiff is not a heroically stoic individual who fought through pain and physical limitations to be able to engage in the activities that he did. Rather, he was able to do so because he had in fact limited or minimal ongoing symptoms…

[109] In summary, the plaintiff did receive soft-tissue injuries to his neck and shoulder areas. He has had ongoing lower back pain that pre-dated the motor vehicle collision, and was not affected in any material way by the motor vehicle collision. He has had a number of subsequent events and injuries that required medical intervention and affected him for various periods of time. I accept the evidence and observations of Dr. Cameron in cross-exanimation that the effect of the motor vehicle collision injuries (that is the physical injuries) has been mild.

Soft Tissue Injury Damages Round Up – The Kelowna Road Edition

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Liability (fault) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


As regular readers of this blog know, I try to avoid ‘round up‘ posts and do my best to provide individual case summaries for BC Supreme Court injury judgements.  Sometimes, however, the volume of decisions coupled with time constraints makes this difficult.  After wrapping up holidays in the lovely City of Kelowna this is one of those times so here is a soft tissue injury round up of recent BC injury caselaw.
In the first case (Olynyk v. Turner) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted.    He was 43 at the time and suffered a variety of soft tissue injuries to his neck and back.  His symptoms lingered to the time of trial although the Court found that the Plaintiff unreasonably refused to follow his physicians advise with respect to treatment.  In assessing non-pecuniary damages at $40,000 (then reduced by 30% to reflect the Plaintiff’s ‘failure to mitigate’) Mr. Justice Barrow provided the following reasons:
[83]I find that Mr. Olynyk suffered a soft tissue injury to his neck and low back. I would describe the former as mild and the later as moderate. There is no necessary correlation between the amount of medication consumed, the frequency of visits to the doctor, or the nature of the attempts to mitigate the effects of one’s injuries and the severity of those injuries and their consequences. There may be many explanations for such a lack of congruity: a person may be particularly stoic or may have an aversion to taking medication for example. On the one hand, in the absence of such an explanation, when there is a significant disconnect between these two things, that can be a reason for treating self reports of pain and limitation with caution…

[87]Given that it is now three years post accident, I am satisfied that Mr. Olynyk’s pain is likely permanent, although as Mr. Olynyk told Dr. Laidlow in the fall of 2011, his symptoms improved in the years since the accident, inasmuch as his level of pain declined as did the frequency of more significant episodes. Leaving aside the issue of his pre-existing back problems, and in view of the authorities referred to above, I consider that an award of non-pecuniary damages of $40,000 is appropriate. In reaching this conclusion, I have taken account of the dislocation that the plaintiff’s loss of employment has caused him. That loss is greater than the mere loss of income that it occasioned and for which separate compensation is in order. The plaintiff had to move to a different community to take a job that he was physically able to do. That is a matter of some consequence.

[88]The next issue is the effect of the plaintiff’s pre-existing back problems. According to Dr. Laidlow because of the plaintiff’s spondylolisthesis, and given the heavy nature of his work, he likely would have experienced back problems similar to those he now experiences in 10 years even if he had not been involved in an accident.

[89]As noted above, such future risks or contingencies are taken into account through a combination of their likely effect and the relative likelihood of them coming to pass (Athey at para. 27). I find that there was a 60 percent likelihood that Mr. Olynyk would experience the same symptoms he now experiences in 10 years in any event. It is not appropriate to reduce the award for general damages by 60 percent to account for that likelihood because the pre-existing condition would not have given rise to symptoms and limitations for 10 years. Mr. Olynyk is now 47 years old. I think it reasonable to reduce the award for general damages to account for his pre-existing condition by 30 percent.

[90]The plaintiff is entitled to $28,000 in general damages ($40,000 less 30 percent). That amount must be further reduced to account for Mr. Olynyk’s failure to mitigate. The net award of non-pecuniary damages is therefore $22,400.

____________________________________________________________________

In the second case released this week (Scoffield v. Jentsch) the Plaintiff was involved in a 2009 collision on Vancouver Island.  Although the Defendant admitted fault there was “a serious dispute between the plaintiff and the defendant as to the severity of the force of impact“.

Mr. Justice Halfyard noted several ‘concerns about the Plaintiff’s credibility‘ and went on to find that the impact was quite minor finding as follows:

[201]I find that, after initially coming to a full stop, the defendant’s vehicle was moving very slowly when it made contact with the rear bumper of the plaintiff’s car. The plaintiff’s car was not pushed forward. The damage caused by the collision was minor. The force of the impact was low. The defendant backed his car up after the collision, and the bits of plastic picked up by the plaintiff some distance behind her car, fell away from his car as he was backing up. I do not accept the plaintiff’s estimate that the closest pieces of plastic on the roadway were eight feet behind the bumper of her car.

Despite this finding and the noted credibility concerns, the Court found that the Plaintiff did suffer soft tissue injuries to her neck and upper back and awarded non-pecuniary damages of $30,000.  In doing so Mr. Justice Halfyard provided the following reasons:

[202]The defendant admits that the plaintiff sustained injury to the soft tissues of her neck, upper back and shoulders as a result of the collision of April 9, 2009. I made that finding of fact. But the plaintiff alleges that the degree of severity of the injury was moderate, whereas the defence argues that it was only mild, or mild to moderate in degree…

[221]I find that, from April 16, 2009 until August 9, 2009, the pain from the injury prevented the plaintiff from working. After that, she was able to commence a gradual return to working full-time, which took a further two months until October 10, 2009. For the first four months after the accident, the pain from the injury prevented the plaintiff from engaging in her former recreational and athletic activities. She gradually resumed her former activities after that time. I find that, by the spring of 2010, the plaintiff had substantially returned to the level of recreational and athletic activities that she had done before the accident. After that time, any impairment of the plaintiff’s physical capacity to work or to do other activities was not caused by the injury she sustained in the accident on April 9, 2009…

[226]The plaintiff must be fairly compensated for the amount of pain and suffering and loss of enjoyment of life that she has incurred by reason of the injury caused by the defendant’s negligence. In light of the findings of fact that I have outlined above, I have decided that the plaintiff should be awarded $30,000.00 as damages for non-pecuniary loss.

______________________________________________________________________

(UPDATE March 19, 2014 – the BC Court of Appeal overturned the liability split below to 75/25 in the Plaintiff’s favour)

In this week’s third case, (Russell v. Parks) the pedestrian Plaintiff was injured in a parking lot collision with a vehicle.  The Court found that both parties were to blame for the impact but the Plaintiff shouldered more of the blame being found 66.3% at fault.

The Plaintiff suffered a fracture to the fifth metacarpal of his right foot and a chronic soft tissue injury to his knee.  The latter injury merged with pre-existing difficulties to result in on-going symptoms.  In assessing non-pecuniary damages at $45,000 (before the reduction to account for liability) Mr. Justice Abrioux provided the following reasons:

[63]I make the following findings of fact based on my consideration of the evidence both lay and expert as a whole:

(a)      the plaintiff’s “original position” immediately prior to the Accident included the following:

·being significantly overweight and deconditioned;

·having a hypertension condition which had existed for many years;

·asymptomatic degenerative osteoarthritis to both knees, more significant to the right than the left; and

·symptomatic left foot and ankle difficulties.

(b)      prior to the Accident, the plaintiff’s weight and deconditioning, together with the left foot and ankle difficulties caused him to live a rather sedentary lifestyle. Although he was able to work from time to time and participate in certain leisure activities, these were lessening as he grew older.

(c)      the Accident did not cause the degenerative osteoarthritis in the right knee to become symptomatic. It did, however, cause a soft-tissue injury which continued to affect the plaintiff to some extent at the time of trial.

(d)      the plaintiff’s ongoing difficulties are multifactoral. They include:

·his ongoing weight and conditioning problems. Although Mr. Russell’s pre-Accident weight and lack of conditioning would likely have affected his work and enjoyment of the amenities of life even if the Accident had not occurred, the injuries which he did sustain exacerbated that pre-existing condition;

·the plaintiff’s pre-existing but quiescent cardiac condition would have materialized the way it did even if the Accident had not occurred. This condition would have affected his long term day-to-day functioning including his ability to earn an income;

·notwithstanding this, the injuries sustained in the Accident, particularly the right knee, continue to affect his ongoing reduced functioning. This will continue indefinitely, to some degree, although some weight loss and an exercise rehabilitation program will likely assist him;

·an exercise and weight loss program would have been of benefit to the plaintiff even if the Accident had not occurred.,,

[73]From the mid range amount of approximately $60,000 I must take into account the plaintiff’s original position and the measurable risk the pre-Accident condition would have affected the plaintiff’s life had the Accident not occurred. Accordingly, I award non pecuniary damages in the amount of $45,000.

______________________________________________________________________________________

In the final case (Hill v. Swayne) the 35 year old Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained soft tissue injuries to his neck and back.   The Court noted some reliability issues with the Plaintiff’s evidence and found his collision related injuries were largely resolved by the time of trial.  In assessing non-pecuniary damages at $20,000 Mr. Justice Armstrong provided the following reasons:

[68]Mr. Hill suffered a neck strain and lumbar strain and received 13 physiotherapy treatments ending February 2, 2010. He was absent from work from December 14, 2009 to January 4, 2010..

[74]I accept that an injury of the type suffered by Mr. Hill was particularly troublesome in light of the heavy work in his role as a journeyman/foreman roofer. A back injury to a person in his circumstances, even if not disabling in itself, would require extra care and watchfulness on the job to ensure that the injury is not exacerbated. In considering the criteria in Stapely, it is significant that Mr. Hill, who was a heavy lifting labourer, injured his back and that the injury has lingering effects. The injuries have minimally impacted his lifestyle, and he has dealt stoically with his employment.

[75]The severity of his pain was modest and the extent to which the duration of his discomfort was related to the accident is uncertain. However, I accept that there is some connection between the collision and his ongoing complaints.

[76]I have considered various cases cited by counsel and additionally referred to the Reichennek case. Although comparisons are of some assistance, I am to focus on the factors set out by the Court of Appeal and the specific circumstances of the plaintiff in this particular case. In the final analysis, I would award the plaintiff non-pecuniary damages of $20,000.

Limitation Periods Not Determinative When Adding Parties to Existing Litigation

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure, Uncategorized. 60 Comments on Limitation Periods Not Determinative When Adding Parties to Existing Litigation

One of the exceptions to the strict application of limitation periods relates to adding parties to existing litigation.  In these circumstances an expired limitation period is not, in and of itself, a barrier to add a party to a lawsuit in the BC Supreme Court.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Haworth v. Haworth) the Plaintiff was injured while riding as a passenger in a vehicle driven by her husband in 2007.  The vehicle lost control in icy conditions.  She sued him for damages.  In the course of the lawsuit ICBC plead the “inevitable accident” defence and eventually added the appropriate road maintenance company as a Third Party.  The Plaintiff then sought to add this party as a  Defendant.  The Road Maintenance company objected arguing, among other matters, that the limitation period to sue them has expired.  Master Keighley found this unpersuasive and granted the Plaintiff’s application.  In doing so the Court provided the following reasons:
[39] There is, as previously confirmed, a presumption of prejudice if a proposed defendant will be deprived of a limitation defence by his addition as a party. Also, as previously indicated, the relevant period during which prejudice is to be assessed is that which follows the expiration, in this case, of the three year period following the date upon which the cause of action arose. The plaintiff will certainly suffer prejudice if her application is dismissed. She will lose a possible claim against a party or parties with potential liability. This issue, Wilson J. indicates in Walsh v. Blair, Vancouver Registry, Action No. M015646, BCSC, said as follows:

[22]      There is prejudice to the plaintiff in that if the application is not allowed, she will lose a right to claim against a party with potential liability. As noted in Takenaka v. Stanley (2000), 91 B.C.L.R. (3d) 179 (S.C. Master), that will usually outweigh the loss of a potential limitation defence to a potential defendant. Generally, the courts are reluctant to deprive a plaintiff of his or her day in court, so that the trend in the cases appears to be that it will take more than theoretical prejudice to outweigh the loss of that potential claim.

[40] The plaintiff’s potential peril becomes more significant when one considers that, should the application be dismissed, and should the present defendant succeed on the issue of unavoidable accident, she will be left without remedy although blameless with respect to the circumstances of the accident.

[41] Neither Her Majesty the Queen or Argo Thompson allege, as is often the case in such applications, that they have been prejudiced by an inability to investigate the claims against them. HMTQ has, of course, been aware of the potential claim since May 12, 2011 when the application to add the Third Parties was brought. There was no evidence of any investigation conducted by HMTQ after that date to the present. While it seems likely the government representatives would have discussed the potential claim with representatives of Argo Thompson at an early date, there is no evidence of that and I can make no such assumption. With respect to itsinvestigation, Argo Thompson says as follows (and this appears in Affidavit No. 2 of Yvonne Van Vliet, a paralegal in the employ of Argo Thompson’s counsel):

14.       Attached as Exhibit “J” to this affidavit is a true copy of the timecard signed by plough operator Chris Jones on November 12, 2007. Mr. Jones’ timecard indicates that he commenced his shift at 5:00 p.m., on November 12, 2007 and worked until 4:25 a.m., on November 13, 2007. On his timecard he recorded applying 41 cubic meters of winter abrasive (activity 310B) to the Coquihalla Highway during his shift.

15.       On May 22, 2012 I was informed by Tom Bone, General Manager for Argo, during a teleconference, that Chris Jones has not been employed with Argo since 2008, nor has Argo been in contact with him since 2008. Furthermore, Mr. Bone informed me that Argo is not aware of Chris Jones’ current address or contact information.

[42] There is no indication that Mr. Jones cannot be found, what reasonable steps have been taken to locate him, or even whether his evidence, beyond that contained in the records, is required for the defence of these claims. With respect to records, there is no evidence to suggest that any are missing or have been destroyed.

[43] In the circumstances, I find that there is no prejudice to these proposed defendants in making the order sought, whereas the potential prejudice to the plaintiff, should she be deprived of potential claims, is overwhelming. An order will go in the terms of the application. Costs will be in the cause.

$80,000 Non-Pecuniary Assessment For Chronic Hip Soft Tissue Injury

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hip soft tissue injury.
In last week’s case (Pisani v. Pearce) the Plaintiff was involved in a ‘significant‘ head on collision.  Fault was admitted by the Defendant.   The crash resulted in a non-specific soft tissue injury to the Plaintiff’s hip.  The symptoms interfered with the Plaintiff’s physical lifestyle and were expected to linger indefinitely.  In assessing non-pecuniary damages at $80,000 Madam Justice Loo provided the following reasons:

[73] Ms. Pisani was injured in a significant head on collision. Her 2009 Mercedes C300 4Matic was written off. She sustained soft tissue injuries to her shoulder, neck, and back. She will likely suffer flare ups from time to time for the rest of her life. She now has problems with her hip that prevent her from enjoying activities she used to enjoy. There is no diagnosis for the problem with her hip, and there is little or no evidence that it will improve. Her relationship with her boyfriend and her friends has been adversely affected.

[74] Her social life and her extracurricular activities have been adversely affected. She has difficulty attending the mosque because sitting on the floor causes her pain. She cannot dance, play soccer, hike, ride her bicycle, or ski. Dancing has always played a big and important part of her life. Hopefully by carrying out Dr. Anton’s recommendations, she will improve her postural muscles and core stabilizers and may be able to resume most of her activities…

[87] In this case, Dr. Anton suggests that Ms. Pisani’s neck, shoulder, and lower back symptoms should hopefully improve with one on one training with a qualified kinesiologist. Dr. Anton also suggests that if Ms. Pisani fails to have a good response to the training, she may not be able to resume dancing. She will probably suffer flare ups of her injuries for the rest of her life. She is still only 23 years old. There is also no evidence that her hip problem will resolve.

[88] I conclude that a fair and reasonable award of non-pecuniary damages is $80,000.

In addition to the above, paragraphs 96-104 are worth reviewing for the Court’s discussion of damages for the Plaintiff’s delayed entry into the workforce as a result of her injuries.

More Disbursement Caselaw

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Adding to this site’s archived caselaw addressing disbursements in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the reasonableness of a variety of disbursements in the prosecution of an ICBC Claim.
In last week’s case (Kezel v. Greenslade) the Plaintiff was involved in two collisions in July 2007.  She sued for damages and in the course of the lawsuit accepted an ICBC formal settlement offer for $46,000 plus costs and disbursements.  The parties agreed to reasonable costs but a variety of disbursements were challenged.   The judgement is worth reviewing for the Court’s discussion of the following disbursements:
1. Medico-legal reports from multiple experts
2.  A Functional Capacity Evaluation
3.  A Defence Medical Exam Cancellation Fee
4.  Outside Legal Fees
5.  Mediation Administration Fees
6.  Photocopy Charges
7.  Legal Alternative Courier Charges
8.  Office Supplies