Uncategorized – Page 9 – BC INJURY LAW

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

Written by ERIK MAGRAKEN on August 24, 2020. Posted in Uncategorized.

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:

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

Written by ERIK MAGRAKEN on August 20, 2020. Posted in Uncategorized.

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:

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

Written by ERIK MAGRAKEN on August 20, 2020. Posted in Uncategorized.

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:

ICBC Psychiatric Expert Rejected As Not “Useful or Reliable”

Written by ERIK MAGRAKEN on August 18, 2020. Posted in Uncategorized.

Adding to this site’s archived case summaries rejecting expert evidence for improper bias or advocacy reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding an expert opinion by an ICBC expert deserved “limited, if any weight” for lacking usefulness or reliability.

In today’s case (Millar v. Wasden) the Plaintiff was involved in a 2013 collision. Fault was admitted by the Defendant. The crash caused longlasting and disabling physical and psychiatric injuries. In the course of the lawsuit ICBC retained a psychiatrist who provided the court with opinion evidence minimizing the connection of the collision to the plaintiff’s injuries. In rejecting this evidence Mr. Justice Voith provided the following criticism:

“Concerning” Affidavit Makes ICBC Benefits Deduction Application Come Up Short

Written by ERIK MAGRAKEN on July 24, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.

In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs. The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000. The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future. In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:

“Extremely Problematic” Testimony Gives Rise to Modest Damage Assessment For Chronic Injury

Written by ERIK MAGRAKEN on July 24, 2020. Posted in Uncategorized.

Given the personal and subjective ways chronic injuries can impact an individual giving reliable evidence is important. If adverse credibility findings are made in the course of an injury trial this can significantly impact a court’s overall view of the evidence. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.

In today’s case (Kaur v. Tse) the Plaintiff was injured in a 2016 collison. The Defendant admitted fault. The Court found that the Plaintiff suffered from chronic myofascial cervical pain and chronic mechanical pain localized on her coccyx as a result of the collision and some symptoms were ongoing at the time of trial. However non-pecuniary damages were only assessed at $17,000 in part due to mitigation issues and further in part to credibility issues the court had with the Plaintiff’s evidence. In reaching this quantum and criticizing aspects of the Plaintiff’s evidence Madam Justice Tucker provided the following reasons:

Supreme Court of Canada – “Waiver of Tort” Is Not a Recognized Cause of Action

Written by ERIK MAGRAKEN on July 24, 2020. Posted in Uncategorized.

Today the Supreme Court of Canada published reasons for judgement finding that there is no recognized cause of action for “waiver of tort” in Canada.

In today’s case (Atlantic Lottery Corp. Inc. v. Babstock) the Plaintiff sought to certify a class action against the Defendants for damages from gambling after playing video lottery terminals. Establishments that used the terminals had to be licenced by the Defendant. Among the Plaintiff’s claims were that the gaming devices were dangerous and tricked players.

The plaintiff sought disgorgement of the Defendants profits relying on the concept of ‘waiver of tort’. The Supreme Court of Canada overturned lower court decisions and found the purported class action should not be certified as it had no realistic chance of success. In clarifying some confusion and confirming that ‘waiver of tort’ is not an independent cause of action in Canada but simply a potential remedy in appropriate circumstances where an established cause of action is made out the majority provided the following reasons:

CRT Assesses Damages for “Relatively Minor” Injury at Only $1,500

Written by ERIK MAGRAKEN on July 17, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by BC’s Civil Resolution Tribunal (“CRT”) addressing fault and damages following a collision. In what is one of the lowest assessments of non-pecuniary damages I have seen the CRT awarded $1,500 for injuries which lasted several months.

In today’s case (Thandi v. Uggal) the Applicant was involved in a 2019 collision. The Respondent denied fault but was found liable for the crash.

The Applicant, who was self represented, gave evidence that he suffered various soft tissue injuries. These required 3 physiotherapy sessions and two doctors visits. The Applicant did not bring medico-legal evidence in support of his claim.

Tribunal Member Kristin Gardner accepted he was injured but awarded non-pecuniary damages at only $1,500. In doing so the Member cited a BC Provincial Court authority from 14 years ago, took the lowest end of the suggested range of applicable damages and did not adjust it for inflation. In reaching this assessment the following reasons were given:

StatsCanada Earnings Data Ruled Admissible in Injury Trial Without Economist or Other Introductory Witness

Written by ERIK MAGRAKEN on July 14, 2020. Posted in Uncategorized.

Helpful reasons for judgement were recently shared with me finding that StatsCan evidence about wages were admissible in a personal injury trial even without them being incorporated in an economists report or otherwise being introduced by a witness.

In the recent case (Reddy v. Enokson) the Plaintiff was seeking damages following injuries in a vehicle collision. In the course of the trial the Plaintiff sought to introduce data from StatsCan “concerning the average hourly wage rate of persons 15 years and over in Canada“. The Defendant objected arguing “these statistics ought not to replace a proper expert’s opinion. ”

Mr. Justice Blok found the evidence admissible as a public document meeting the admissibility provisions of s. 29 of BC’s Evidence Act.

In reaching this conclusion the Court provided the following reasons:

Trial Adjourned Where IME’s “Frustrated” Due to Misunderstanding of Covid-19 Related Deadlines

Written by ERIK MAGRAKEN on July 13, 2020. Posted in Uncategorized.

Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.

In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist. When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting

“We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.

We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.“

The Plaintiff did not attend. Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel. In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.

The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons: