BC INJURY LAW – Page 23 – The MacIsaac Group of Law Firms

‘Inappropriately Dismissive” and “Close-Minded” Defense Doctor Opinion Judicially Criticized

Written by ERIK MAGRAKEN on September 4, 2019. Posted in ICBC Shoulder Injury Cases.

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today finding a defence doctor’s opinion to be “of little value” in an injury claim.

In today’s case (Lambert v. Tiwana) the plaintiff was involved in two collisions and claimed damages. The Defendants admitted fault in both claims. The Plaintiff suffered a myofascial shoulder injury with persistent symptoms. In the course of the lawsuit the Defendants had the Plaintiff examined by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries. In finding the ‘close-minded‘ and ‘inappropriately dismissive‘ opinion of little value Madam Justice Adair provided the following reasons:

Pre Accident Medical Records Are Not Producible “as of right, or on demand” in Injury Claims

Written by ERIK MAGRAKEN on August 28, 2019. Posted in BCSC Civil Rule 7.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, providing useful comments on disclosure obligations of personal injury litigants under the BC Supreme Court Civil Rules.

In today’s case (Holmberg v. McMullen) the Plaintiff suffered “significant injuries” as a result of two vehicle collisions and sued for damages. In litigation the Defendants requested various pre accident medical records and pharmacological records arguing that when serious injuries are alleged such documents must be produced. A Master disagreed and dismissed the application. The Master’s decision was appealed which was also dismissed.

In noting that parties have no obligation to produce documents not in their possession or control in the first phase of document production and further that pre accident medical records are not producible on demand and as of right even in the face of serious injuries being disputed on the pleadings Mr. Justice Johnston provided the following reasons:

Speeding Bus Driver Found Faultless for Collision With Moose

Written by ERIK MAGRAKEN on August 22, 2019. Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a negligence lawsuit against a bus driver who collided with a moose.

In today’s case (Tran v. Anderson) the Defendant was operating a Greyhound bus on June 22, 2011. He was travelling above the posted speed limit. A moose appeared “suddenly out of the foliage to the right of the highway, about 20 feet in front of the bus“. The Court found that the Defendant had no time to react in these circumstances and even if was travelling at the posted speed limit the result would have been the same.

In dismissing the negligence claim Madam Justice Adair provided the following reasons:

$125,000 Non-Pecuniary Assessment for Wrist Injury With “Significant Derangement”

Written by ERIK MAGRAKEN on August 21, 2019. Posted in ICBC Wrist Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a complex wrist injury with chronic limitations.

In today’s case (Sarginson v. Nordquist) the Plaintiff was involved in a 2014 collision. The Defendant was liable. The crash resulted in a complicated wrist injury which, despite undergoing several surgeries, did not fully recover and was left with ‘significant derangement’. Additionally there were some soft tissue injuries and some related psychological injury. In assessing non-pecuniary damages at $125,000 Madam Justice Winteringham provided the following reasons:

$86,000 Non-Pecuniary Assessment for Triggering of Symptoms in Pre Existing Degenerative Spine

Written by ERIK MAGRAKEN on August 20, 2019. Posted in Uncategorized.

Reasons for judgment were published today assessing damages for a collision resulting in various soft tissue injuries coupled with the onset of symptoms in a pre-existing degenerative spine.

In today’s case (Ryan v. Lawson) the Plaintiff was injured in a 2014 collision. The Defendant accepted fault. The crash resulted in a variety of soft tissue injuries many of which recovered. THe crash also resulted in the onset of symptoms in a pre-existing albeit asymptomatic degenerative condition in the Plaintiff’s spine. In assessing non-pecuniary damages at $86,000 Madam Justice Jackson made the following findings:

$90,000 Non Pecuniary Assessment for Chronic and Partly Disabling Soft Tissue Injuries

Written by ERIK MAGRAKEN on August 19, 2019. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries with a poor prognosis for recovery.

In today’s case (Sen-Laurenz v. Napoli) the Plaintiff was involved in a 2014 collision which the Defendant accepted fault for. The Plaintiff was described as a “highly motivated and at that time physically fit 20-year-old plaintiff was attending Capilano University in North Vancouver and was in the early stages of pursuing her career goal to become a medical doctor. “. The crash resulted in chronic soft tissue injuries which did not fully recover. The residual symptoms were expected to be present indefinitely. The injuries impeded her education and delayed her entry into medical school. In assessing non pecuniary damages at $90,000 Mr. Justice Walker provided the following reasons:

Injury Claim from Tenant Walking Into a Refrigerator Dismissed

Written by ERIK MAGRAKEN on August 16, 2019. Posted in Occupier's liability claims.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an injury claim arising after a tenant walked into a refrigerator.

In today’s case (Van Hartevelt v. Oita Investments (BC) Ltd.) the Plaintiff was a tenant in an apartment complex owned by the Defendant. A refrigerator was left in the hallway for several days. The Plaintiff, who was aware the refrigerator was present, walked into it and allegedly injured his knee. He sued for damages but the claim was dismissed finding that he was the author of his own misfortune.

In dismissing the claim Mr Justice Funt provided the following reasons:

$100,000 Non-Pecuniary Assessment For Back Pain With Unsuccessful Surgical Intervention

Written by ERIK MAGRAKEN on August 14, 2019. Posted in ICBC Spine Injury Cases.

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury sustained as a result of a collision.

In today’s case (Gee v. Bock) the Plaintiff was involved in a 2014 collision. The Defendant admitted fault. The crash aggravated and worsened pre-existing back pain to the point of the Plaintiff undergoing disc replacement surgery which proved unhelpful. He was left with chronic symptoms. In assessing non-pecuniary damages at $100,000 Madam Justice Marzari made the following findings:

Somatic Symptom Disorder Not “Too Complex” For Jury Trial

Written by ERIK MAGRAKEN on August 7, 2019. Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering whether a claim involving psychological injury was too complex for a jury trial.

In today’s case (Lee v. Averbach) the Plaintiff was involved in two collisions and sued for damages. The Defendants elected trial by jury. The Plaintiff argued given the medical evidence the claim was too complex for a jury trial. The court disagreed and dismissed the Plaintiff’s application to strike the jury notice. In doing so Master Elwood provided the following reasons:

ICBC Request for Homemaking Benefit Deduction From Jury Award Denied

Written by ERIK MAGRAKEN on August 2, 2019. Posted in Cost of Future Care Cases, ICBC No-Fault (Part 7) Benefits.

In recent months ICBC is getting more aggressive in separating part 7 benefits claims and tort claims. In addition to seeking to settle tort claims while leaving part 7 benefits claims open ICBC also appears to be bringing more applications for post trial deductions of part 7 benefits.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering and rejecting an ICBC request to deduct significant damages from an award for future care.

In today’s case (Canning v. Mann) the Plaintiff was injured in a 2015 collision. She was rendered totally disabled as a result. At trial a jury found the Defendant 80% at fault for the crash. Damages were assessed including substantial damages for future care. The Defendant brought an application seeking to reduce the award by over $130,000 arguing that an ICBC homemaking benefit is available. Mr. Justice Basran rejected this argument noting this is a discretionary benefit and the test for securing it was not met. In dismissing this portion of the application the Court provided the following reasons: