BC INJURY LAW – Page 17 – The MacIsaac Group of Law Firms

City Liable After Tenant Injures Other By Pouring Used Oil on a Fire

Written by ERIK MAGRAKEN on May 5, 2020. Posted in Occupier's liability claims.

Reasons for judgement were published this week by the BC Court of Appeal dismissing an appeal of a jury finding liability after a tenant of a residential property owned by the City of Burnaby caused severe burns to a guest.

In today’s case (Abdi v Burnaby (City)) the Plaintiff, a young woman who was invited as a guest to a party at the Defendants property “suffered severe burns and her life was forever changed” after the Defendant tenant had a backyard fire and “poured used motor oil onto the fire from a bucket. The oil exploded onto Ms. Abdi, and she became covered in flames from neck‑to‑toe“.

There was evidence that the tenants “had a long history of having fires in the fire pit they created in their backyard, despite open fires being contrary to a City bylaw“. There was further evidence that the City had some prior knowledge of this requiring, at least on one occasion, the City’s fire department having to attend the residence and extinguish a fire. Following this incident the City did not follow up with any inspection of the property despite having a policy to conduct safety inspections of its residential properties.

At trial a jury found both the tenants and the City liable. In dismissing an appeal of the City’s liability the BC Court of Appeal provided the following reasons:

Defendant Relying on “Waving” Motorists Still Found Liable For Crash

Written by ERIK MAGRAKEN on April 22, 2020. Posted in ICBC Liability (fault) Cases.

Relying on another motorist waiving you through an intersection is no defense to an allegation of negligence if the intersection is in fact not clear. Motorists must keep their own proper and clear lookout and relying on representations of others that ‘all is clear’ does not displace this duty. This principle was demonstrated in reasons for judgement published today by the BC Supreme Court, New Westminster Registry.

In today’s case (St Denis v. Turner) the Defendant was stopped attempting to turn left at an intersection. The first 2 of the 3 oncoming lanes of traffic had vehicles backed up at the intersection and these motorists apparently ‘waved on’ the Defendant. As he proceeded with his turn and entered the final oncoming lane the plaintiff drove into the intersection and a collision occurred. The Court found both motorists liable with the Defendant shouldering more of the blame. In finding that relying on ‘waving on’ motorists was no defence to negligence Mr. Justice Funt provided the following reasons:

CRT – No “Placeholder” Lawsuits To Preserve Future ICBC Benefits

Written by ERIK MAGRAKEN on April 22, 2020. Posted in BC Civil Resolution Tribunal, Uncategorized.

In British Columbia the norm has long been that a collision victim could file a lawsuit against ICBC to preserve the right to future accident related medical/rehab benefits even if no past benefits were outstanding. The reason was simple, contractually ICBC Part 7 benefits could be payable over many years. However, if enough time passed without the need to access these benefits, the limitation period could expire thus thwarting the ability to claim future benefits if needed. A simple court filing could prevent this from occurring. The BC Supreme Court was reluctant to dismiss such claims understanding their role in preserving future benefits claims.

The BC Government has now diverted many ICBC disputes away from the courts and into a provincially created body known as the Civil Resolution Tribunal. In the first CRT decision I’m aware of addressing this practice the CRT ruled that such claims will not be accepted and will be dismissed.

In the recent case (Mu v. ICBC) the Applicant filed a ‘placeholder’ lawsuit to preserve her right to seek future ICBC benefits after being involved in a collision. No past benefits were outstanding. As ICBC looked to move the dispute forward the Applicant asked the CRT to “pause” the proceeding until such time as a dispute arose to future benefits. The CRT was not prepared to do so and ruled that under the new system placeholder claims to preserve limitation rights will not be allowed. In reaching this decision CRT Vice Chair Andrea Ritchie provided the following reasons:

“Hurried” Opinion That Chronic Pain Will “Inevitably Resolve” Rejected By Court

Written by ERIK MAGRAKEN on April 21, 2020. Posted in Uncategorized.

Adding to this site’s archives of judgements criticizing or rejecting expert opinion evidence reasons were published today by the BC Supreme Court dismissing the opinion of a defence retained orthopaedic surgeon commenting on chronic pain.

In today’s case (Adams v. Rhys-Williams) the Plaintiff was injured in a 2014 collision. The Defendants admitted liability. The crash resulted in injuries to the plaintiff which developed into myofascial pain and a chronic pain disorder.

In the course of the lawsuit the defendants retained a partially retired orthopaedic surgeon from Ontario who conducted an independent medical exam. That surgeon opined that the Plaintiff’s injuries were not disabling and ought to “inevitably resolve“. The Court rejected this opinion as being “hurried and more of an attempt to summarily dismiss the injuries claimed“. In rejecting the evidence Mr. Justice Jenkins provided the following reasons:

“Unlawful” Surreptitious Recording of Defense Medical Appointments Not Admissible At Trial

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

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, holding that a Plaintiff’s surreptitious recording of defence medical exams are not admissible at trial.

In today’s case (Cook v. Kang) the Plaintiff was injured in a collision and sued for damages. In the course of the lawsuit the defendant obtained a court order that the Plaintiff be assessed by defence selected physician. The Plaintiff also consented to see a second defence physician on similar terms as the court ordered appointment.

The Plaintiff surreptitiously recorded both appointments. This came to light during trial and the existence of the recordings was not disclosed to the defence ahead of time. The Court ruled that the recordings were not admissible on two grounds, first because they were not listed in compliance with the rules, second that recordings of court ordered medical appointments are “unlawful” without an express term permitting this.

In excluding the evidence Mr. Justice Riley provided the following reasons:

Late Offer to “Emotionally and Mentally Fragile” Plaintiff Fails To Trigger Costs Consequences

Written by ERIK MAGRAKEN on April 17, 2020. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, declining to award a Defendant trial costs despite the Plaintiff receiving judgement for less than their pre trial settlement offers.

In today’s case (Wiseman v. Wang) the Plaintiff was injured in a collision and sued for damages. Prior to a February 19, 2019 trial the Defendant made two formal settlement offers. On June 13, 2018 the Defendant offered to settle the plaintiff’s claims for $100,000 new money plus costs and was open for acceptance until 4:00 pm on the last business day prior to the commencement of trial. A second offer was delivered on February 13, 2019 and offered to settle the plaintiff’s claims for $150,000 new money plus costs. It was also open for acceptance until 4:00 pm on the last business day before the commencement of trial.

At trial the Plaintiff’s damages were assessed at $79,000. The Court noted that trial “could have resulted in a much higher award” but reliability problems with the Plaintiff’s own evidence prevented a more favourable result.

The Defendant sought trial costs in these circumstances but the Court declined. In dismissing the defence application the Court noted that the Plaintiff was ‘emotionally and mentally fragile‘ and the timing of the second offer made it such that costs consequences should not be triggered. Mr. Justice Davies provided the following reasons:

Court Finds ICBC Did Not Meet Their Burden for s. 83 Deductions after Jury Trial

Written by ERIK MAGRAKEN on April 6, 2020. Posted in Uncategorized.

BC’s Insurance Vehicle legislation allows a court to deduct from a claim for future loss those damages that have benefits payable under ICBC’s part 7 scheme. ICBC’s track record of paying benefits and their position of a plaintiff’s entitlement to those benefits at trial don’t always align. The legislation was recently amended to direct a court not consider the likelihood that the benefits will be paid or provided when making such deductions.

In one of the first judgements to consider this new language reasons were published today by the BC Supreme Court refusing ICBC’s application for deductions following a jury trial.

In today’s case (Siverston v. Griffin) the Plaintiff was injured in a collision and sued for her damages. Following trial a jury assessed damages which included $60,000 for future care. The Defendant sought to have this award significantly reduced arguing many of the future care items could be paid by ICBC under their part 7 scheme. Madam Justice Jackson was not persuaded, however, and refused to reduce the award. In reaching this conclusion the court found the Defendant simply could not meet their burden with the jury’s lump sum award for future losses. The Court provided the following reasons:

BC Waives Liability From Covid-19 Exposure Claims to Essential Service Providers

Written by ERIK MAGRAKEN on April 2, 2020. Posted in Uncategorized.

Today BC’s Minister of Public Safety and Solicitor General enacted Ministerial Order M094.

This order provides legal immunity to ‘essential service’ providers from claims in negligence if someone alleges they were”infected with or exposed to SARS-CoV-2 as a result of the person’s operating or providing an essential service”.

The immunity does not apply to claims of gross negligence. Also, to have the benefit of the immunity the essential service provider must comply with the following section:

(a) was operating or providing the essential service in accordance with all
applicable emergency and public health guidance, or

(b) reasonably believed that the person was operating or providing the essential
service in accordance with all applicable emergency and public health
guidance.

The full order can be found here.

The key sections read as follows:

Lawyers Changing Firms and Disbursement Carriage

Written by ERIK MAGRAKEN on April 2, 2020. Posted in Uncategorized.

When a lawyer changes firms clients usually have a choice of whether to stay with their present firm or follow their lawyer to the new firm. In the case of personal injury files prosecuted on a contingency basis there are often disbursements associated with the files. When a client wishes to follow their lawyer to a new firm and have their file transfered who has the burden of paying for the disbursements? Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, tackling this issue.

In today’s case (Sagert v. Cascade Law Corporation) the Petitioner’s employment with the Respondent law firm ended. Approximately 58 of the Petitioner’s clients elected to have their claims stay with the Petitioner. The Respondent firm had incurred disbursements on these files. The firm argued that these had to be paid before the files would be transferred. The Petitioner brought an application to have the files transferred without up front payment of disbursements. The Court concluded that the firm was within their right to demand payment of disbursements prior to transfer. In reaching this conclusion Mr. Justice Wilson provided the following reasons:

$100,000 Non-Pecuniary Assessment For Incompletely Healed Tibia Fracture from Snowmobile Collision

Written by ERIK MAGRAKEN on April 1, 2020. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic leg injury following a snowmobile collision.

In today’s case (Carothers v. Imus) the Plaintiff was a passenger on a snowmobile that collided with another snowmobile crushing the plaintiff’s left leg in between the two snowmobiles.

The impact resulted in a tibial fracture that required surgical intervention. The injury went on to incomplete resolution and resulted in chronic symptoms. In assessing non-pecuniary damages at $100,000 Madam Justice Horsman provided the following reasons: