Reasons for judgement were released last week by the BC Court of Appeal ordering ICBC to pay costs after the settlement of a matter following trial.
In last week’s case (Krohn v. Weidner) the Plaintiff was injured in a collision and sued for damages. Following trial the Plaintiff ” immediately identified some areas of concern” and tried discussing these with ICBC. ICBC refused to address these issues stating that “no discussions concerning the amount of the judgment without an appeal first being filed.”
The Plaintiff appealed and the parties eventually settled the outstanding issues. The Plaintiff sought costs but ICBC refused to agree to these arguing each party should bear their own costs of the appeal. The BC Court of Appeal ultimately ordered that ICBC bear the costs of the appeal and in reaching this conclusion provided the following reasons: [5] The appellant seeks costs of the appeal. The respondent, on the costs question, says that this is a case for an order that each party bear their own costs, consistent with Olney v. Rainville, 2010 BCCA 155, because this is a case, says the respondent, of divided success. [6] From what we have been told, it is apparent that the only route for the appellant to recovery of the undisputed disbursements as special damages was by pursuing this appeal. Accordingly, in our view, this is not a case that justifies departing from this Court’s usual rule that the party successful on an appeal recover his or her costs.
Plaintiff credibility is integral to prosecutions involving chronic soft tissue injuries. If a Plaintiff’s credibility is successfully attacked the underlying claim can be impacted accordingly. Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, demonstrating this.
In this week’s case (Harshenin v. MacLeod) the Plaintiff was involved in a significant rear end collision in 2008. The Defendant admitted fault for the crash. The Plaintiff alleged the crash caused long standing injuries which forced him into early retirement. The Plaintiff sought damages of over $470,000. The Court, however, had serious concerns about the plaintiff’s credibility and largely rejected his claim. In awarding less than 10% of the damages sought Mr. Justice Cole provided the following comments about the plaintiff’s credibility: 35] At the same time the plaintiff was claiming, since the date of the accident to the date of trial, that he spent approximately $36,162.29 on out-of-pocket expenses for transportation, accommodation, meals and massage therapy as a result of the accident. Many of the out-of-pocket expenses were shown to be either not related to the accident, excessive, or lacked proper documentation. [36] For instance, the plaintiff would claim massage therapy while he was in Lumby/Vernon, visiting his girlfriend, and then staying in a hotel and charging meals for both himself and his girlfriend. He failed to provide documentation in respect to the massage therapy. He travelled from Castlegar to the Lumby/Vernon area on February 12, 2008, which is a 4 ½-5 hour drive; he also travelled to the Lumby/Vernon area to visit his girlfriend and for a massage on March 13, 22, 31, April 10, and 30. In the latter part of May he hauled his fifth-wheel trailer to Vernon which took approximately 8-9 hours and then went to Kamloops with his girlfriend to purchase a new fifth-wheel trailer. What is most telling is that, although he said the massage therapy was somewhat of a unique nature that was provided to him by the individual in Lumby, those trips ceased when his relationship with his girlfriend was terminated. [37] The plaintiff also claimed receipts for meals for two people in Howe Sound and Squamish on two separate occasions but could not explain the purpose of those trips, and there was no documented evidence that he was there for a medical purpose. There is also a group of three receipts, undated, that he claims for, but has no idea what the receipts represent. When asked why he kept receipts for food and hotel and not for massage therapy, the plaintiff gave the unbelievable answer that, “I was so relaxed I forgot to get receipts”… [49] I was impressed by Ms. Cymbal as a witness. Her evidence is internally consistent; her evidence is supported by her Employment Insurance claim forms that were filed in these proceedings. I am satisfied Ms. Cymbal still, in her own way, likes the plaintiff. She appears to be a very forgiving person and I am satisfied that she was forthright and honest. I therefore accept her evidence and reject the evidence of the plaintiff and Darren when it conflicts with her evidence. I am satisfied that the plaintiff has attempted to coerce her to give false evidence with respect to his claim. I am satisfied that he sold his business to his son because he wanted to retire. His suggestion that he may lose his business and farm is without any factual basis whatsoever. His pattern of travel and spending money for the purchase of vehicles is all inconsistent with his evidence that he was broke or could be foreclosed out of his business and farm. The dishonest receipts that he has attempted to collect on for trips that were clearly unnecessary and for meals that were for him and his girlfriend are consistent with his inability to tell the truth. I am therefore satisfied that the plaintiff sold his business to his son because he wanted to retire and for no other reason… [55] I am satisfied that the plaintiff has suffered a mild neck injury along with short term pain and lower and upper back pain, all of which should have, in my view, resolved within 2 months.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, awarding damages against a bouncer and the pub that employed him following a beating of an unruly patron.
In this week’s case (Reimer v. Rooster’s Country Cabaret Ltd.) the Plaintiff was physically removed from the Defendant pub after he tried to enter while concealing a beer in his cargo shorts. Moments later he was “seriously beaten” by the Defendant bouncer and other individuals. The Plaintiff suffered a variety of injuries which fortunately recovered largely without incident. Although the Defendant bouncer was charged criminally he was acquitted at the related criminal trial.
Mr. Justice Jenkins found the bouncer liable for the damages and further found the pub vicariously liable for the assault. In ordering the defendant’s jointly and severally liable to pay punitive damages the Court provided the following reasons: [97] The conduct of Mr. Turnau and Mr. Barber in particular, and to a slightly lesser extent the other security staff who either participated in the beating or stood idly by while the beating continued, was unnecessary, totally unacceptable, “high-handed, malicious, arbitrary and reprehensible” to a major degree. Further, compensatory damages in this case are inadequate to compensate Mr. Reimer. They would not provide the defendants with, as Gerow J. put it, their “just deserts”, nor would they serve the objectives of “retribution, deterrence and denunciation” of the defendants’ actions. [98] The assault in the parking lot was unprovoked and the entire episode should have ended with Mr. Reimer and Mr. Murchie walking out through the parking lot. It is also particularly objectionable that the beating was carried out in front of several of the patrons of Rooster’s who had proceeded outside and into the parking lot, where, as completely independent witnesses, they were exposed to incredible brutality. [99] Considering all of the authorities referred to me on the issue of quantum, I award a sum of $20,000 as punitive damages. [100] The award of punitive damages is made against both Mr. Turnau and Rooster’s, as I have found the latter directly liable in addition to being vicariously liable.
While the law in BC presently does allow interest on disbursements to be recoverable in the right circumstances, a prerequisite for recovery is an evidentiary foundation proving that it was necessary to incur the interest claimed. Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry (Babb v. Doell) rejecting such a claim due to a lack of evidence. In reaching this decision Master McDiarmid provided the following reasons: [11] A claim for interest by a party entitled to costs might in some circumstances be characterized as necessary, for example, in a situation where the incurring of disbursements such as filing fees or daily hearing fees could only be done by obtaining some funding. Interest could also be a proper disbursement when it was reasonably incurred in the conduct of the proceeding even if, strictly speaking, avoidable. In Franzman, evidence was led which satisfied me that the disbursement interest which the plaintiff agreed to pay to her lawyers as part of a fee agreement was proper and I allowed, as a disbursement, the amount of interest calculated at 6%. [12] Most written retainer agreements contain provisions for payment of interest on unpaid accounts. Many retainer agreements contain provisions which are binding as between lawyer and client, for the payment of some disbursements at a rate higher than the rate allowed by registrars when assessing party/party costs. Even in contingency retainer agreements, plaintiffs often agree to and have the means to pay disbursements and do so. [13] Unlike in Franzman and in Chandi (Guardian ad litem) v. Atwell, 2013 BCSC 830, the decision relied on by the plaintiff, there is no evidence before me to assist in me establishing either the necessity or the propriety of the plaintiff’s claim for interest. [14] As noted above, the onus of proving either the necessity or propriety of disbursements is on the party claiming those disbursements. Absent such evidence, I am unable to make a determination that the interest claimed was either necessary or proper. Accordingly, the claim by the plaintiff for interest is denied.
Reasons for judgement were released today by the BC Court of Appeal addressing the proper role of mathematical evidence in assessing damages for diminished earning capacity.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision. The Plaintiff was awarded $110,000 in past wage loss at the time of trial for a period that spanned over 6 years. The Court awarded a figure modestly above this for future losses despite findings that the Plaintiff would be limited for the duration of her working career, some 20 more years. The Plaintiff appealed arguing the trial assessment was inordinately low. The BC Court of Appeal agreed and substituted a substantially greater figure. In addressing the proper role of mathematical/statistical evidence in diminished capacity assessments the BC Court of Appeal provided the following reasons: [36] This process is “an assessment rather than a calculation” and “many different contingencies must be reflected in such an award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18. “Ultimately, the court must base its decision on what is reasonable in all of the circumstances. Projections, calculations and formulas are only useful to the extent that they help determine what is fair and reasonable”: Parypa v. Wickware, supra, at para. 70. [37] With that said, if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them. For example, in Henry v. Zenith (1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this Court held that a trial judge’s failure to consider an economist’s projections of a plaintiff’s lost future earning capacity contributed to the judge committing an error in principle, which “resulted in a wholly erroneous estimate of the damages”. [38] In cases where the future is hard to predict, a global approach to assessing the loss of future earning capacity is preferable. However, in this case, given the trial judge’s findings of fact, the future is not hard to predict. Ms. Jurczak intended to become a DIR consultant prior to her injuries and because of those injuries she can only work 15 hours per week. The trial judge found as fact that if she was physically able to work 23 hours per week, there was sufficient demand for her skills that she would be able to bill for those hours. [39] Additionally, the award for loss of future earning capacity is supposed to compensate Ms. Jurczak for the next 20 to 22 years but is only $10,000 higher than the award for past wage loss. [40] In my view, there is a reversible error in the trial judge’s assessment of future loss of capacity. The trial judge’s award bears no correlation to the award for past income loss; nor does it accord with the trial judge’s findings regarding the effect of her injuries on her future ability to work [41] Ms. Jurczak does not dispute the trial judge’s findings of fact. Rather, she maintains the trial judge offered no explanation as to why he departed so significantly from the findings in the economist’s report, which he appeared to accept as credible and reliable. Her argument is premised on the assumption the trial judge pulled the figure of $120,000 out of thin air, without having regard to the economist’s calculations. [42] It is obvious from the trial judge’s analysis and reasoning that he rejected a purely mathematical approach to calculate Ms. Jurczak’s loss of a capital asset. Instead, it appears he followed the approach in Brown v. Golaiy and awarded Ms. Jurczak $120,000. While the award represents two to three times Ms. Jurczak’s average earnings before the accident and almost double her annual earnings afterwards, the amount has no foundation in the evidence. [43] The trial judge was entitled to reject a mathematical approach in the circumstances of this case. However, given his factual findings, in my view the award for loss of future earning capacity is so inordinately low as to amount to an error. [44] Having regard to the award for loss of future earning capacity or $110,000 representing a 6 year loss, and considering Ms. Jurczak has about 20-22 years to age 65 and possible retirement, I would increase the award for loss of future earning capacity to $400,000.
What’s a Clawbie? You can click here for a lengthy explanation, or if you want to skip all that pesky reading what you really need to know is that Clawbies are annual law blog awards handed out following a top secret meeting between Steve Matthews, Jordan Furlong and Simon Fodden. I don’t know what all goes on there but suspect it may involve drawn straws or sizable kickbacks. Whatever the deal I know it’s not all shady business as these legal power mongers must select their winners based on peer endorsements. Here are mine for 2013 –
1. Eric Turkewitz’s New York Personal Injury Law Blog – I know, Turkewitz isn’t Canadian. New York’s close enough though right? Eric gets the nod as he is a personal injury lawyer who has been in the law blogging business as long as anyone. Additionally he avoids the usual sins of personal injury law blogs such as self promotion and mind numbing key word spamming. On top of this he stays current and has remained interesting over the years. Plus his first name is kind of like mine. Well done Eric.
2. Eric Macramalla’s OffSide Sports Law Blog – okay, this guy is Canadian and his name is also like mine. If that isn’t enough he also qualifies based on merit with timely articles of interest on all things sports law.
3. Last but not least I nominate David Bilinsky’s ThoughtfulLaw Blog. I’ve said it before but David was a strong influence behind the launch of this blog back in 2008. For this reason alone David gets my annual nod. Plus his site looks kind of barren with no 2012 Clawbie recognition so the power brokers would be wise to fill the void in 2013 or risk being paid a friendly ‘visit’ by my Canadian MMA Law Blog to remind them what’s good for them.
Happy nominating everyone!
Reasons for judgement were released earlier this month by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010. She sustained soft tissue injuries to her low back and sacroiliac region. These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons: [20] Ms. Hatch continues to have back pain. She finds it particularly bothersome after physical exercise and towards the end of the work week. She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy. Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis. [21] All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse. The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve. [22] It is now more than three years since the Accident. Ms. Hatch has reached a plateau in her recovery. Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012. This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time. The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time. The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times. As such, there is no mitigation issue. [23] In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury. The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores. The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. .. [41] As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar. [42] Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages.
While ICBC actively seeks a rate hike from BC motorists the government continues to raid the Crown corporation’s coffers. As previously reported, the 2013 BC Government budget anticipated scooping a total of $257 million from ICBC in 2013. The BC Government’s Second Quarterly Report has now been released and reveals that “The outlook for commercial Crown corporation net income is up $91 million mainly reflecting an increase in ICBC net income due to improved investment returns.”
In fact by the end of September 2013 the Government already scooped $137 Million more than projected from ICBC. There can be no delusions that ICBC is, has been and is expected to continue to be financially profitable. If the government left those profits intact there would be no need for a hidden tax hike in the guise of increased insurance premiums. Here is the raw data:
Adding to this site’s archived case summaries addressing C5/6 disc injuries, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Levens v. Lehman) the Plaintiff was injured in a rear end collision. She had pre-existing neck and back pain. The collision caused a herniated disc which remained symptomatic at the time of trial and had a 50% likelihood of needing future surgical intervention. In assessing non-pecuniary damages at $48,000 Madam Justice Hyslop provided the following reasons: [105] I have concluded, based on all of the medical evidence and the evidence of Ms. Levens, that as a result of the accident Ms. Levens suffered a herniated disk as seen in the MRI ordered by Dr. Singh in 2011. [106] I also conclude that Ms. Levens, due to her pre-existing condition, was more susceptible to a disk herniation as a result of the degenerative changes in her cervical spine. [107] I further conclude that Ms. Levens’ back injury was due to myofascial pain which put her into the hospital in November of 2009. Ms. Levens has spinal stenosis in her back unrelated to the accident which was aggravated by the accident. As a result of the accident, I conclude, for about a year, Ms. Levens had additional pain that she would not have had but for the accident… [144] At the time of the accident, Ms. Levens was 65 years old and at the time of the trial was age 69. Her most significant injury is the disc herniation in her neck. The pain has been severe. The myofascial pain and arthritis in her back would have been ongoing and not related to the accident. The motor vehicle accident caused increased pain which landed her in the hospital. [145] She is disabled as she does not always have a full ROM in her neck. She has been unable to engage in some of her recreational and sporting activities that she engaged in prior to the accident. [146] In coming to the amount of her non-pecuniary damages, I take into consideration that Ms. Levens had a pre-existing condition in her neck which was described by Dr. Singh as “the car accident did cause the final blow to the patient’s disc bulging at a spot that was already weak and had some problems previously.” [147] I award the plaintiff $48,000.00 in non-pecuniary damages.
If you are injured in a collision and sell your house for more suitable accommodations can the realtor commission fees be claimed as damages? Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry addressing this.
In this week’s case (Brown v Bevan) the Plaintiff was injured in a 2009 intersection collision. The Defendant was found fully at fault. The Plaintiff suffered various injuries which continued to impact her at the time of trial. She ultimately sold her multilevel townhouse and moved into a one level apartment. The Plaintiff moved in part because she struggled walking up and down the stairs in her former residence. She sought damages for the realtor’s commission charged in the sale arguing that this expense was incurred due to the collision. In refusing these damages Mr. Justice Weatherill provided the following reasons: [180] The largest and only disputed item is the claim for $33,801.79 representing the net commissions on the sale of the plaintiff’s Gilford Street town home ($20,680), storage ($599.55), costs associated with purchasing the Homer Street property including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16). [181] The issue is whether the costs related to moving are reasonable expenses that can be claimed. But for her injuries and resultant difficulty she had negotiating the stairs inside and outside of home, the plaintiff argues she would never have sold, moved and incurred those expenses. She relies on Rodger v. McDowell, [1994] B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189… [185] In Rodger, an award for commission expenses was made in similar circumstances where a plaintiff moved from a two level home to a one level home. The basis of the award is unclear. It apparently was based on defence submissions that “Ms. Rodgers would be adequately and appropriately compensated if she is reimbursed for real estate commission and moving expenses.” [186] In Piper, a claim for real estate commissions, moving costs and taxes related to changing residences was dismissed because the plaintiff’s low back injury was not proven to have been caused by the motor vehicle accident. [187] In this case, the plaintiff argues the expenses associated with changing residences are directly attributable to the collision and the plaintiff’s prolonged distress from having to use multiple stairs in the Gilford residence on a daily basis. She could not manage them and a move to a single level home was necessary. [188] In my view, these expenses are not recoverable from the defendant because: a. the principles of compensatory damages in tort require the plaintiff to be compensated for all reasonably foreseeable losses directly or indirectly caused by the tort (BG Checo International Ltd. at para 47); b. the plaintiff is not to be placed in a position better than his or her original one. The court must determine the plaintiff’s “original position” before the tort and her “injured position” after the tort. It is the difference between these two positions that is the plaintiff’s loss (Athey at para 32). [189] While the accident indirectly caused the plaintiff’s left heel pain and that moving residences was a foreseeable risk, on the Athey test, the plaintiff’s claim under this head must fail. I find that the plaintiff would have moved residences to a one story home in the future in any event. These expenses would have been incurred regardless, albeit sooner (perhaps a year or two) than otherwise expected. In other words, these expenses were not incurred “but for” the collision.
