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Court Finds "After the Event" Insurance a Factor To Consider When Awarding Post Trial Costs

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

In what, to my knowledge, is the first BC injury case commenting on the weight a court should place on “After the Event” insurance when awarding costs post trial, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this.
In the recent case (Clubine v. Paniagua) the Plaintiff was injured in a crash and sued for damages.  Prior to trial the Defendant offered to resolve the claim for a total of $94,848.32 plus costs and disbursements.  The Plaintiff rejected this offer and proceeded to trial where he was awarded a total of $77,224.32 in damages.  The Defendant asked for costs of the trial arguing their offer should have been accepted.
The Plaintiff had ATE insurance which covers some of these adverse costs consequences.   The Court was asked to take this factor into account in stripping the plaintiff post-offer costs and making the Plaintiff pay the Defendant’s trial costs.  In finding this was an appropriate factor to consider Madam Justice Watchuk provided the following reasons:

[27]         On the costs application it was disclosed that the plaintiff purchased adverse cost insurance known as “After-the-Event” (“ATE”) insurance prior to trial.  In submissions the plaintiff explained that the ATE insurance would cover the defendant’s disbursements and costs from the date of the offer if costs were awarded against the plaintiff, and would also pay for the plaintiff’s disbursements incurred but not awarded from the date of the offer.  It will not pay for the plaintiff’s costs following the date of the offer. 

[28]         The defendant submits that the ATE insurance effectively undermines the intent of the offer to settle rule.  It allows a plaintiff to avoid the punitive costs consequences of the rule, ignore reasonable offers to settle, and with impunity take their chance at trial.  The winnowing function of the costs rules is obviated by ATE insurance; doubtful cases can proceed through litigation without risk of adverse costs consequences.  I conclude in this case that this insurance had such an effect. 

[29]         The ATE insurance in this case strongly weighs in favour of the defendant’s costs application. ..

[30]         The defendant made reasonable efforts to settle this matter.  The plaintiff’s failure to accept the reasonable offer to settle should have costs consequences.  The ATE insurance held by the plaintiff is a factor that further weighs against costs following the event in these circumstances. 

[31]         The offer was open to the eve of trial, July 22, 2016.  In these circumstances the plaintiff is entitled to only his pre-trial costs of $6,500 plus disbursements.  The defendant’s application is granted and she is entitled to the costs and disbursements of the trial. 

$185,000 Non-Pecuniary Assessment for Severe Soft Tissue Injury With Nerve Irritation

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Adding to this site’s soft tissue injury non-pecuniary database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury with nerve irritation and a poor prognosis.
In today’s case (Broad v. Clark) the Plaintiff was involved in a 2013 collision.  The defendant denied fault but was found fully liable at trial.  The crash caused a severe low back soft tissue injury which progressed into chronic pain with a poor prognosis.  In assessing non-pecuniary damages at $185,000 Madam Justice DeWitt-Van Oosten provided the following reasons:

[272]     I find that the soft tissue injury to the lower back was severe, leading to multiple and complex issues that have worsened in their cumulative impact since July 2014, including: mechanical low back pain; a painful lesion on her lower back that has grown; and, intermittent nerve irritation that causes pain to “shoot” down her legs, particularly the right leg.

[273]     I also find that the plaintiff is likely to be impacted by these conditions, in one form or another, for the entirety of her life.  The overall prognosis for improvement is poor.  The plaintiff presents as an unusual case, with multiple issues simultaneously affecting her lower back.  The lesion, in particular, appears to be a rarity.

[274]     The evidence establishes that the plaintiff’s life has been profoundly impacted by her lower back injury.  The video footage from May and June 2014, the Facebook photographs and Instagram postings do not persuade me to the contrary.  They represent moments in time.  The video footage predates the time at which the lower back injury took a turn for the worse.

[275]     The evidence, considered in its entirety, proves the existence of chronic pain and limitations to physical capacity that adversely impact the plaintiff’s emotional health; relationships with friends and family; her ability to physically engage with her children; intimacy with her partner; an incapacity to complete everyday tasks, including maintaining a household and meeting her children’s needs; and, the plaintiff’s physical struggles keep her out of the external work force and unable to achieve the independence and self-sufficiency goals that she set for herself.  She now spends a large portion of her life in pain and on the “sidelines”, unable to avail herself of opportunity for active engagement and advancement.  She is only 28.

[276]     In this sense, I agree with the plaintiff that her situation is analogous to (although not as severe as), Turner v. Dionne…

[284]     Recognizing that no two cases are ever exactly alike, after reviewing the authorities cited by the parties and applying the factors from Stapley v. Hejslet, it is my view that non-pecuniary damages within the context of the plaintiff’s individual circumstances are appropriately set at $185,000.

Defendant Not Justified in Punching Mouthy and "Belligerent" Plaintiff in the Face

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Smithers Registry, demonstrating that punching someone in the face is rarely the legally acceptable solution to a problem.
In the recent case (Azak v. Chisholm) the Defendant was a contractor building a retaining wall on property neighbouring the Plaintiff’s.  A verbal confrontation between the Plaintiff and Defendant occurred with the court finding “the plaintiff confronted Chisholm about the Project in a belligerent manner that Chisholm did not like” and specifically with the Plaintiff calling the Defendant “a ‘f-ing asshole” and a “white piece of shit”.
The Defendant gave evidence as follows surrounding the altercation:
Chisholm told the plaintiff that “we are going to go to work and what are you going to do about it?”  The plaintiff responded by saying: “you’re going to find out right now” and that Chisholm was a “white piece of shit”.  Chisholm testified that he perceived this as a threat and he did not want to find out what the plaintiff had in mind.  Chisholm said “I’ve had enough”, jumped down from the retaining wall and hit the plaintiff in the face.
The punch resulted in a fractured cheek and nose that requires surgical correction.
The Plaintiff successfully sued for damages. In rejecting the Defendant’s claim of self defense and noting the burden on a defendant to successfully raise the defense Mr. Justice Weatherill provided the following reasons:

[70]         I find that, regardless of the harassment and insults the plaintiff had levied at Chisholm and regardless of how long the plaintiff’s difficult behaviour had been ongoing, Chisholm had no right or justification to do what he did.  I find that, whatever threat Chisholm perceived when he was first confronted by the plaintiff on the morning of July 2, 2013 had eased well before the Assault took place.  I do not accept that Chisholm was either afraid for his own safety or that of his co-workers.  Chisholm could easily have either removed himself from the property or had Nyce mediate the situation, as he had done many times previously.  Instead, I find that Chisholm simply and regrettably let his anger and frustration get the better of him.  

[71]         I find that Chisholm’s reaction was unreasonable and totally disproportionate to the circumstance he was in and I reject his claim that he acted in self-defence.  No reasonable person in Chisholm’s shoes would have felt physically threatened by what the plaintiff had said.

[72]         I find that the plaintiff has demonstrated, on the balance of probabilities, that Chisholm committed the tort of battery upon him, that Chisholm failed to demonstrate he was acting in self-defence and, therefore, Chisholm is liable to the plaintiff in damages.

$65,000 Non-Pecuniary Assessment for Chronic "Low Level" Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which resulted in chronic, albeit ‘low level’ pain for a Plaintiff.
In the recent case (McGoningle v. Parada) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered various soft tissue injuries which largely improved however she was left with chronic low level pain.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bracken provided the following reasons:
[56]         I find that the plaintiff suffered a soft tissue injury to her neck, back and shoulders in the accident.  She experienced pain and restricted movement for a few months before things began to improve…
[59]         I find the plaintiff’s condition has clearly improved, but she still suffers a level of pain that impacts her ability to do any heavy lifting or carving of large pieces.  She is able to create small crafts and perform light duties at the soup kitchen…
[61]         I am satisfied on the evidence that the plaintiff still suffers from a low level of pain that interferes with her daily life and limits her ability to perform heavy work and causes some pain in her work creating small crafts.  It appears that a program of physiotherapy, massage therapy and acupuncture did result in improvement, but the plaintiff was either unable or unwilling to follow the recommended course of treatment…
[69]         I agree with the defendant to the extent that the plaintiff’s injuries have improved significantly since the date of the accident and, even though the plaintiff suffers from chronic pain, she has made significant progress to the point that she has almost full range of motion of her upper body, neck and shoulders with pain only at the extremes of rotation.  I find the appropriate amount for non-pecuniary damages is $65,000.

BC Lions Streaker Alleges Brain Injury After Hit By Marcell Young – Quick Legal Breakdown

Written by admin on . Posted in Uncategorized.

Earlier this week a streaker thought it was a good idea to run onto the field during a CFL game.  Not taking too kindly to the unwanted interruption Marcell Young of the BC Lions took matters into his own hands and put an end to the streakers 15 seconds of fame.
The incident was captured by @Jadenfootball21 who published the hit via Twitter
 


 
The ‘fan’ has now hired a personal injury lawfirm and is alleging the incident caused brain injury.  The firm published a press release noting “Our client suffered serious injuries, including a mild traumatic brain injury, as a result of being violently struck by BC Lions player Marcell Young.  Our client has been released from the hospital and is now recovering at home.  His future prognosis remains unclear. ”  These allegations of injury have yet to be proven in Court.
So is there merit in this potential lawsuit?  While controversial, there can be.
The fan had no business being on the field.  Interrupting the game can bring a host of legal consequences for the fan.  However, security guards, players or anyone else looking to end the streaker’s ill-conceived fun must do so with a reasonable amount of force in the circumstances.  Exceeding this can bring damages under the tort of battery.
The law of battery is rather straightforward.  A Plaintiff simply needs to prove that the Defendant made intentional and unwanted contact with him and harm indeed occurred as a result of the contact.
From there a Defendant is free to raise defenses such as consent, provocation or self defense.  BC Courts have stated as follows when justifying battery via self defense:
Self defence imports the idea that the defendant is under attack at the hands of the plaintiff, or reasonably believes that he will be subject to such an attack, even if the plaintiff has neither the intention nor the power to make such an attack. Even if the circumstances entitle the defendant to claim he was acting in self defence, he cannot escape liability unless he discharges the burden of proving that the amount of force he used was reasonable in all the circumstances. This will depend on the court’s assessment of the situation, taking into account the form and nature of the plaintiffs attack on the defendant and the reasonableness of the response of the defendant.
And the following for provocation:
In order to amount to provocation, the conduct of the plaintiff must have been “such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault.”  

$75,000 Non-Pecuniary Assessment for Probably Permanent Soft Tissue Injuries

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

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, assessing damages for chronic and probably permanent soft tissue injuries.
In today’s case (McColm v. Street) the Plaintiff was injured in a 2014 collision.  Fault was admitted.  The crash resulted in injury to the Plaintiff’s neck, back and shoulder.  Symptoms persisted to the time of trial.  The court noted while there was a possibility the symptoms would improve in the future it was more likely that complete recovery would not occur.  In assessing non-pecuniary damages at $75,000 Madam Justice Warren provided the following reasons:

[86]         I have concluded that as a result of the accident, Mr. McColm has suffered pain and a loss of enjoyment of life, which will continue, to some extent, into the foreseeable future and from which he is unlikely to ever fully recover.

[87]         As a result of the injuries he sustained in the accident, Mr. McColm suffered from severe pain in his neck, back and right shoulder, with associated severe headaches, for several months.  The symptoms gradually improved, but the first year after the accident was marked by significant discomfort and functional limitations.  Although the pain and other symptoms have continued to gradually improve, he has been left with ongoing sporadic pain, particularly in his shoulder.  While there is a possibility that he will continue to improve and even fully recover, it is more likely than not that his current condition is permanent.

[88]         Mr. McColm’s pain is exacerbated by certain physical activities and by heavy lifting.  The pain has resulted in the recurrence of Mr. McColm’s difficulties sleeping.  It has also affected his mood and his lifestyle.

[89]         Before the accident, Mr. McColm’s mood was good and he enjoyed spending time with Ms. Marshall and his other friends.  He maintained a very active lifestyle and enjoyed many physical activities, including fishing, camping, kayaking, cycling, and snowboarding, as well as playing hockey, soccer, golf, and disc golf.  I accept his evidence that he was a particularly daring snowboarder.  This was corroborated by Mr. Edwards and Mr. Butler.  He also played the guitar.  For the first few weeks after the accident he was largely bedridden.  Since then he has gradually returned to some physical activity but he has not been able to return to many of the more extreme physical activities, such as snowboarding and team sports.  He has been depressed and somewhat socially isolated.  His relationship with Ms. Marshall ended, although the evidence was too vague to support specific findings about the extent to which this was caused by the injuries he sustained in the accident.

[90]         The most significant of the Stapley factors in this case are Mr. McColm’s age, the impairment of his physical abilities and associated loss of lifestyle, and his emotional suffering.  Mr. McColm is relatively young and faces the prospect of a lifetime of sporadic pain and associated functional limitations.  He has had to settle for a much more routine or mundane recreational life than he enjoyed before the accident.  The pain, functional limitations, and loss of lifestyle have caused emotional suffering linked to social isolation and some degree of angst about his future…

[94]         Having considered all the authorities and the factors discussed in Stapley, I assess Mr. McColm’s non-pecuniary damages at $75,000.

BC Supreme Court – Property Owners Under No Legal Duty To Clear Ice From Sidewalks

Written by admin on . Posted in Occupier's liability claims.

Reasons for judgment were published this week by the BC Supreme Court, Rossland Registry, dismissing a slip and fall lawsuit against a property owner on the basis that they have no duty to clear ice and snow from sidewalks outside their property.
In today’s case (Scheck v. Parkdale Place Housing Society) the Plaintiff slipped and fell on a public sidewalk which separated Angus Street in Summerland, BC from a senior’s housing facility operated by the defendant Parkdale Place Housing Society.
The Plaintiff sued both the City of Summerland and the Housing Society who owned the business adjacent to the sidewalk.  In dismissing the claim against the Society the Court concluded there is not common law duty for property owners to clear municipal sidewalks running adjacent to their property.  In reaching this decision Mr. Justice Johnson provided the following reasons:

[45]         As to whether Parkdale owed a duty at common law, I accept the reasoning of the Ontario Court of Appeal in Bongiardina at para. 19:

The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be “No”. Although the “neighbour” principle from Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), has been expanded in recent years to cover a myriad of new relationships, it would stretch it too far if it was applied in the circumstances of this case. A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner.

[46]         I do so with some reluctance as this seems contrary to the prior decision of this court in Reidy v. Kamloops Hotel Ltd. (1997), 41 B.C.L.R. (3d) 338 (S.C.). There, a plaintiff fell on an icy municipal sidewalk outside the defendant hotel. The court found that the hotel was not an occupier of the sidewalk at para. 6, then went on to consider whether the hotel was liable at common law. In concluding that the hotel was liable to the pedestrian, the court applied the “unusual danger” test from Indermaur v. Dames (1866), L.R. 1 C.P. 274 (Eng. C.P.), and referred to the Supreme Court of Canada decision in Campbell v. Royal Bank (1963), [1964] S.C.R. 85, 43 D.L.R. (2d) 341, which considered a test to determine if an unusual danger existed.

[47]         What the court in Reidy did not refer to, as it was apparently not cited, were the decisions in Weiss and Tutinka. With respect, it seems to me that the decision in Reidy was per incuriamas a result of not having the advantage of those two decisions, and should not be followed.

[48]         I am able to determine the question put by Parkdale’s application, as it does not depend on the condition of the sidewalk. I conclude that Parkdale owed no duty to Ms. Scheck with respect to Summerland’s sidewalk and dismiss her claims against Parkdale.

$20,700 "Accelerated Depreciation" Claim Succeeds Following Vehicle Damage in Crash

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Provincial Court ordering a Defendant (insured by ICBC) to pay over $20,000 in vehicle depreciation after a crash.
In the recent case (Chiang v. Kunar) the Plaintiff purchased a Mercedes for just over $68,000.  The following year the Plaintiff was involved in a crash caused by the negligence of the Defendant.  The crash caused over $34,000 in repair costs leaving the vehicle far less valuable after repairs.  The Plaintiff sued to recover the value of this accelerated depreciation but ICBC argued that there was no loss.  In siding with the Plaintiff, who to his credit succeeded in litigation while self represented, The Honourable Judge K. Arthur-Leung provided the following reasons:

      I am satisfied that the Claimant has met the burden of proof, and that this low to mid-level luxury vehicle was indeed a customized vehicle that was in the high end of its own category of Mercedes Benz, and sustained accelerated depreciation.  The Bill of Sale shows thousands of dollars of extras that he ordered for this Vehicle.  It was a rare vehicle at the time that it was initially in the Vancouver market, and the experts both testified that it remains an in demand vehicle if it was not in an accident.

In addition, the decision of Rutter v. Adams, 2016 BCSC 554 (CanLII) at paragraph 314 relies upon Signorello v. Khan, 2010 BCSC 1448 (CanLII) to include quantification that “…such losses can include a ‘loss of use and the inconvenience of having to return the vehicle on several occasions’.”  In addition, in Cummings v. 565204 BC Ltd., 2009 BCSC 1009 (CanLII), the Court relied upon Reinders v. Wilkinson, 1994 CanLII 2527 (BC CA), 1994 CanLII 2527 (BCCA) that it is not necessary for the party to sell the vehicle in order to succeed in a claim for accelerated depreciation.  The damage sustained to this Vehicle was not merely cosmetic and required significant repair, to wit it remains outstanding with ongoing operational and mechanical problems…

THEREFORE THIS COURT ORDERS JUDGMENT TO THE CLAIMANT AGAINST THE DEFENDANTS, JOINTLY AND SEVERALLY AS FOLLOWS:

a)            The amount of $20,700.00, for accelerated depreciation of the Vehicle ($18,000.00 plus 15% tax);

b)            Interest on the sum of $20,700.00 as of February 26, 2015, in accordance with the Court Order Interest Act;

c)            The amount of $1,990.08 in general damages as claimed by the Claimant;

d)            Interest on the sum of $1,990.08 as of May 9, 2016, in accordance with the Court Order Interest Act;

e)            The amount of $472.50 for the cost of the Coast Auto Appraisal Report;

f)            Court attendance fees of Mr. Sparrow of Coast Auto Appraisal in the amount of $1,155.00;

g)            Court filing fees in the amount of $156.00; and

h)            Service fees in the amount of $30.00.

Why ICBC's Boast of "Doubling of Benefits" Is Deceptive at Best

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps.

Today ICBC and the BC Attorney General were publicly boasting about how new laws are ‘doubling benefits’ to accident victims.
 
ICBC Screenshot
This soundbite is technically true but also profoundly deceptive.
As part of the BC Government’s so-called ‘reforms’ of the BC auto insurance landscape they have doubled ‘no-fault’ medical and rehabilitation benefits from $150,000 to $300,000.
Why is this deceptive?  Because the soundbite is designed to persuade the public that their rights are being increased if they are involved in a collision when the polar opposite is true.  While the ceiling of no-fault benefits are technically increased for everybody only a sliver of the population will ever access these.  How few people?  According to BC’s Attorney General only 40 people per year.  40!
You don’t have to take my word for it.  Here is Attorney General David Eby’s response when questioned in the legislature about this benefit increase:
Lee: Just before we leave section 18, I recollect from our last committee session on this particular section that the Attorney General referred to the increase, of course, of accident benefits coverage from $150,000 lifetime to $300,000 lifetime. I’d just like the Attorney General to indicate how many instances there have been where a person’s lifetime level of $150,000 has been exceeded.
Hon. D. Eby: There are about 40 every year
Now there is nothing wrong with 40 collision victims having increased benefits.  That is fine.  They are catastrophically injured and need the help.  But it is coming with a cost.  Every single collision victim in BC is having their rights stripped as part of this trade off.   EVERY British Columbian injured by an impaired, distracted or otherwise negligent driver is actually having their rights stripped.  The legal changes ICBC lobbied for and the government passed include

The Government says they are only stripping the rights of collision victims with ‘minor’ injuries but the devil is in the details.  Included in ICBC definition of ‘minor’ are

  • Chronic Depression
  • Post Traumatic Stress Disorder
  • Conversion Disorders
  • Chronic Pain Syndromes
  • Chronic physical injuries
  • Disabling physical injuries
  • All psychological “conditions”
  • All psychiatric “conditions”

If the Government thinks its good policy to strip people’s rights so be it.  But don’t give us garbage and call it a gift.

Victoria Soon to be Home to BC's Biggest Gym!

Written by admin on . Posted in Uncategorized.

ISV
This post is a bit off topic but since most of my readers are British Columbians I thought this may be of interest.
I am proud to announce the launch of Inspire Sports Victoria!
Inspire Sports is an internationally affiliated organization that will be opening their first gym in Canada right in the heart of greater Victoria.  The gym will be the largest facility in all of BC!
With an emphasis on physical literacy for all, Inspire Sports Victoria is proudly registered with GymBC and will provide everything from entry level recreational classes to world class competitive training.
Our website has just been launched and can be found here.
You can also follow us on Facebook and Instagram.
If you live in the Greater Victoria area and are looking for a wonderful activity for you or your family please check us out!  Class registration will begin in June with our first full month of programs scheduled for August.  The full fall schedule should be out soon!