BC INJURY LAW – Page 11 – The MacIsaac Group of Law Firms

Court Declines to Award Plaintiff Double Costs Where Adverse Liability Finding was a “Live Possibility”

Written by ERIK MAGRAKEN on January 5, 2021. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Often times when a plaintiff is awarded damages beyond their formal settlement offer the BC Supreme Court awards double costs. Such an outcome is discretionary and not automatic and occasionally double costs are declined. Reasons for judgment were published this week by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In this week’s case (Enns v. Corbett) the Plaintiff was injured in a collision and sued for damages. The Plaintiff was awarded damages approximately $30,000 above their formal settlement offer. Despite this the Court declined to award double costs noting there was a ‘live possibility‘ of an adverse liability outcome.

In reaching this conclusion Mr. Justice Riley provided the following reasons:

[7] I do not agree with the plaintiff that the offer ought reasonably to have been accepted as contemplated in Rule 9-1(6)(a). Rather, I agree with the defendant that at the time the offer was made, there was uncertainty as to the strength of the plaintiff’s claim, due in large measure to issues of contributory negligence and potential apportionment of liability. Despite the live issues as to liability, the plaintiff’s offer expressly rested on the premise that the defendant would be found “fully liable” for the collision; it made no allowance for the contingent risk that the plaintiff might be found contributorily negligent, which was a live possibility based on the evidence available to the parties when the offer was made. To quote from the defendant’s submission, the plaintiff’s offer “did not account for the real risk that the plaintiff’s claim might have been dismissed entirely or that liability might be apportioned, based on information available to the parties at the time”. As explained in Owen v. Folster, 2019 BCSC 407 at para. 12, the plaintiff’s offer did not put forward a “genuine compromise or an incentive to settle” in view of the litigation risks, such that the defendant did not act unreasonably in declining to accept it.

…

[12] In my view, the most telling feature of this case is the fact that the offer to settle was premised on the plaintiff’s position that the defendant would be found fully liable for the collision, when there were live issues as to apportionment of liability. In these circumstances, it cannot be said that the offer “ought reasonably to have been accepted”. The other factors are less important in this particular case. The judgment obtained at trial was higher than the amount in the offer, but only marginally so as a proportion of the overall amount in issue. And, although the defendant’s insurance coverage placed her at some degree of financial advantage in terms of the decision to proceed to trial, there is no evidence that the defendant or her insurer used their financial strength in an untoward manner. The plaintiff was successful at trial and is therefore entitled to costs of the action at Scale B, but not double costs.

$200,000 Non Pecuniary Damage Assessment for Chronic Disabling PTSD

Written by ERIK MAGRAKEN on January 5, 2021. Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and disabling injuries following a fatal motor vehicle collision.

In this week’s case (Kempton v. Struke Estate) the Plaintiff was involved in a 2015 collision. He was operating a tractor trailer when the Defendant, travelling in the opposite direction, crossed the centre line resulting in a head on crash. The collision killed the Defendant instantly. The Plaintiff suffered few physical injuries but sustained post traumatic stress disorder (“PTSD”) as a result of the horrific crash. This condition disabled him and was not expected to improve.

In assessing non-pecuniary damages at $200,000 Mr. Justice Crerar provided the following reasons:

Congratulations Clawbies2020 Winners and Thank you For the Hall of Fame!

Written by ERIK MAGRAKEN on December 31, 2020. Posted in Uncategorized.

The Canadian Law Blog Awards, which started as a quasi legal marketing blogging tool, have taken on a life of their own and have become a well recognized badge for many contributors in the Canadian legal field for their on line efforts in providing helpful content to the public.

With the awards handed out on New Years Eve the Clawbies pride themselves on being the latest awards of the year.

This morning the 2020 Clawbies were announced. Please check our the full list and follow all the worthwhile legal content providers highlighted there! A lot of great work by great lawyers and other legal professionals.

I was honoured to be ‘retired’ by the Clawbies losing eligibility for future awards by being inducted into their Hall of Fame. Thank you for this. It has been my pleasure to author thousands of articles here over the past decade plus and I have no intention of stopping still. I am looking forward to all the future Clawbie winners for the great content they create and the creative ways the legal profession will continue to use social media to connect with the public.

Vehicle Lessor Awarded Damages for Accelerated Depreciation By BC Civil Resolution Tribunal

Written by ERIK MAGRAKEN on December 24, 2020. Posted in BC Civil Resolution Tribunal.

I’ve written many times about the law of ‘accelerated depreciation’ claims in BC. In short when a vehicle is damaged in a crash it often suffers a loss of market value, even after all reasonable repairs are done. ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims. The damages for such claims can be pursued against the at fault motorist (through their liability insurance policy).

As was demonstrated in reasons published this week by BC’s Civil Resolution Tribunal there is no reason why such claims have to be limited to vehicle owner/operators but others with title interest in the vehicle can pursue such a claim. In what I believe is one of the first times this issue was addressed the Tribunal found that a vehicle lessor can also obtain damages for accelerated depreciation.

In this week’s case (Dual Mechanical Ltd. v. Vicencio) the applicants (a vehicle lessor and lessee) vehicle was involved in a crash caused by the respondent. The vehicle suffered an accelerated depreciation due to the damages from the crash. The applicants brought a claim arguing one or the other of them should be entitled to the damages. The CRT found that the vehicle lessor, given that title remained with them under the terms of the lease, was the appropriate party to be awarded these damages. In reaching this decision Tribunal Member Lynn Scrivener provided the following reasons:

BC Covid Limitation Period Suspensions Come to an End in March

Written by ERIK MAGRAKEN on December 22, 2020. Posted in Uncategorized.

Today it was announced that suspended limitation periods for starting a civil or family action or appeal in BC courts will end on March 25, 2021.

Order in Council # 655 was just released and reads as follows:

Executive Council Chambers, Victoria

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that (a) sections 2 and 3 of Appendix 2 of B.C. Reg 199/2020 are repealed, and (b) effective March 25, 2021, item 27 of Schedule 2 of the COVID-19 Related Measures Act, S.B.C. 2020, c. 8, is repealed

The Law Society of BC has just published this notice to the profession:

An early holiday gift! The government has provided advance notice that although the public health state of emergency continues, the suspension of limitation periods for starting a civil or family action or appeal in BC courts will end on March 25, 2021. For clarity, March 25, 2021 is the final end date for the suspension of limitation periods. There is no transition or grace period (90 days or 45 days) after March 25, 2021. March 25, 2021 is the one year anniversary from the date the first ministerial order suspending limitation periods (Ministerial Order M086) was made on March 26, 2020. BC has graciously been afforded the longest suspension of limitation periods of any province in Canada.

While you still have time – don’t wait; file your Notices of Claim and Notices of Appeal now.

See the order and find out more information from the government here. We will provide you with further details in January 2021. Please note that this order does not apply to the other ministerial orders and regulations made under the COVID-19 Related Measures Act.

Application for ICBC Wage Loss Benefits Dismissed For 7 Days of Disability

Written by ERIK MAGRAKEN on December 21, 2020. Posted in BC Civil Resolution Tribunal, ICBC No-Fault (Part 7) Benefits, ICBC Wage Loss.

The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.

In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision. His injuries caused him to miss 7 days of work. He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits. The CRT agreed and dismissed the applicant’s claim. In doing so Tribunal Member Kristen Gardner provided the following reasons:

CRT Dismisses Applicant Request for ICBC To Pay Lump Sum Part 7 Benefits

Written by ERIK MAGRAKEN on December 21, 2020. Posted in BC Civil Resolution Tribunal, ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were published earlier this month dismissing an applicants claim at the BC Civil Resolution Tribunal asking for ICBC to pay physiotherapy treatment expenses as a lump sum.

In the recent case (Smith v. ICBC) the self represented applicant was injured in a October, 2019 collision. He required physiotherapy which ICBC paid for directly to the service provider. The Applicant asked the CRT to award him $12,000 as a lump sum for treatment expenses. The claim was dismissed with the CRT noting that while ICBC can pay a lump sum for treatment expenses doing so is entirely discretionary and continued payment of necessary treatments as they are incurred is acceptable. In dismissing the claim Tribunal Member Kristen Gardner provided the following reasons:

$60,000 Damages Awarded For Diminished Housekeeping Capacity

Written by ERIK MAGRAKEN on December 15, 2020. Posted in Uncategorized.

Reasons for judgement were published this month assessing damages for diminished housekeeping capacity at $60,000 following chronic collision related injuries.

In the recent case (Ploskon-Ciesla v. Brophy) the Plaintiff was involved in a 2017 collison that the Defendant admitted fault for. The collision caused a constellation of physical injuries which negatively impacted the Plaintiff recreationally,, vocationally and domestically. In assessing $60,000 in damages for diminished housekeeping capacity over and above non-pecuniary damages Mr. Justice Ball provided the following reasons:

Low Jury Award For Non Pecuniary Damages Set Aside Given Findings of Ongoing Deficit

Written by ERIK MAGRAKEN on November 26, 2020. Posted in ICBC Shoulder Injury Cases.

Reasons for judgment were published this week by the BC Court of Appeal overturning a low jury award for non-pecuniary damages where they also awarded damages for future medical care and diminished earning capacity.

In the recent case (Thomas v. Foskett) the Plaintiff suffered a shoulder injury in a collision and sued for damages. At trial, some 5 years later, a jury awarded the Plaintiff damages including non-pecuniary damages of $15,000, $16,308 for loss of future income earning capacity and $20,336 for costs of future care.

The Plaintiff appealed the non-pecuniary assessment arguing that the findings of needing future medical treatment and having a diminished earning capacity are inconsistent with such a low assessment of non-pecuniary damages. The Court of Appeal agreed, set aside the jury’s award and substituted an assessment of $60,000 for non-pecuniary loss. In reaching this result the court provided the following reasons:

Diminished Earning Capacity Damages Awarded Despite Plaintiff Increasing Earnings Each Year Since Collision

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

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: