Tag: BC Infants Act

Contingency Fees and Catastrophic Infant Claims Discussed

Written by admin on August 8, 2012. Posted in Shaken Baby Cases, Uncategorized.

Section 40 of the BC Infants Act requires judicial approval of injury claim settlements involving infants with claims settled at over $50,000. The approval of legal fees is part of the judicial scrutiny process. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing such a settlement and further setting out a useful chart summarizing previous judicially approved fees.
In this week’s case (E.B. v. Basi) the infant plaintiff was catastrophically injured while in foster care during an alleged intentional “shaken baby” assault. This resulted in severe traumatic brain injuries requiring one-to-one care on a daily basis for the duration of the child’s life.
A settlement of $13,000,000 was judicially approved. The decision is worth reviewing in full for Mr. Justice Macaulay’s careful analysis of the factors that need to be considered when approving fees in such claims given the non-binding nature of infant contingency fee agreements. At the conclusion of the reasons for judgement the Court set out the below useful chart of previously approved infant settlements.

Case	Nature of Claim	Settlement Amount	Settlement Timing	Legal Fee Sought	Hours Estimated	Fee Awarded
Harrington v Royal Columbia 1995 CanLII 2345 (BCCA)	Medical malpractice	$1.5 million and costs	3 days < trial	$500,000	Estimate of 800 hours not accepted by trial judge; 280 hours accepted	$175,000
Richardson v Low 1996 CanLII 571	Medical malpractice (birth case)	$2.27 million	Settled well before trial	$897,750	Court says no basis to estimate time but must be less than 260 hours	$325,000
Cook v Mission 1996 CanLII 1394	Medical malpractice	$2.6 million	Settled on 1st day of trial	$850,000	Non recorded	$650,000
Adams v Emmott 1997 CanLII 746	Medical malpractice (birth case)	$3 million	Settled Thursday before Tuesday trial	$725,000	300 hours estimate by Court	$600,000
Chong v Royal Columbia 1997 CanLII 4362	Medical malpractice (birth case)	$2.5 million	After 1 week of trial	$750,000	2131.2 hours for counsel and 654.9 for paralegals and students	$750,000
Renaerts v Korn 1998 CanLII 4979	Medical malpractice (birth and abandonment; intentional infliction of harm)	$8 million and $500,000 costs	Settled weekend before trial (numerous pretrial motions and limitation defence)	$2.2 million	Hours for 3 counsel valued at $825,000	$1.8 million
Duchene v Woolley 2002 BCSC 1878 (CanLII)	Medical malpractice (birth case)	$3.6 million	Settled 2 days before trial although defendants did not serve liability reports	$1.244 million	167 hours estimated but Court notes more was probably spent	$900,000

Bizove v Cornish 2003 BCSC 1615 (CanLII)	Medical malpractice (birth case)	$3.566 million	3 days before trial	$750,000	740 hours (3 senior counsel)	$750,000
Makowsky v Jaron 2004 BCSC 419 (CanLII)	Medical malpractice (birth case)	$3.2 million	4 months before trial but liability ceased to be issue several months before trial	$900,000	136 hours recorded but Court suggests they must have exceeded 200 hours	$600,000
Strachan v Winder 2005 BCSC 59 (CanLII)	Medical malpractice (birth case)	$4 million	2nd day of 2 week trial	$862,500	Recorded time for 3 senior counsel 484 hours	$800,000
Delaronde v. HMTQ 2000 BCSC 1626	MCFD shaken baby case	$5.448 million	Settled after 4 weeks of evidence and 3 days of submissions	$1.347 million	None mentioned	$1.347 million
B.M. (Guardian ad Litem of) v R.M. 2011 BCSC 64	MCFD shaken baby case	$5.35 million	Liability trial (8 days) and appeal then settled several months before trial	$1.7 million	Hours valued at $607,320	$1.475 million

Infants, Injury Claims and Waivers of Liability

Written by admin on October 9, 2009. Posted in Civil Procedure, Uncategorized. 113 Comments on Infants, Injury Claims and Waivers of Liability

When people participate in riskier organized sports such as martial arts, mountain biking, skiing or rafting often times the companies that organize these events require participants to sign a ‘waiver of liability’ agreement.
These agreements generally state that in the event the participants are injured while performing the events, even if injured through the fault of the organizers, the participants will not sue the organizers of the events. These waivers of liability come in many different forms and these contracts can be binding and effectively take away a persons rights to sue.
What about when infants (in BC people under the age of 19 are considered infants) or their parents enter into these contracts on the infants behalf? Can these be binding? Reasons for judgement were released today by the BC Supreme Court dealing with this issue.
In today’s case (Wong v. Lok’s Martial Arts Centre Inc.) the Plaintiff alleged he was injured when engaged in a sparring match with a Defendant in the lawsuit. The Plaintiff claimed that the defendant company was “negligent in failing to take preventative measures to ensure that injuries did not occur in the course of sparring matches by taking such measures as screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches. ”
At the time the Plaintiff began taking martial arts courses with the Defendant the Plaintiff’s mother signed a contract which stated in part that “It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School. YOU ARE RESPONSIBLE FOR ALL INJURIES.!”
The Martial Arts School brought a motion to dismiss the lawsuit based on this contract. Mister Justice Willcock was asked specifically “whether a child’s parent can effectively execute a pre-tort release on behalf of a minor”. The Court held that the contract was not enforceable because the Infant’s Act “does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort. ”
Mr. Justice Willcock engaged in a thorough and lengthy analysis of the law at paragraphs 19-53 of the judgement which are worth reviewing in full for anyone interested in BC Infants Law. In holding that this contract was not enforceable Mr. Justice Willcock concluded as follows:
[55] The release is a simple document. It clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school…

[59] I have considered the defendant’s submissions that the Court should not limit the full range of parental authority. I am also cognizant of the policy reasons for permitting parents to sign limited releases (considered in the Washington State cases Scott v. Pacific West Mountain Resort, 834 P. 2d 6 (Wash. 1992); and Wagenblast v. Odessa School Dist.(1988), 110 Wn.2d 845, 758 P.2d 968) and the arguments that such releases are permissible in the common law. (Malamud and Karyan “Contractual Waivers for Minors In Sports-Related Activities” (1991-1992) 2 Marquette Sports L.J. 151; Doyice J. Cotten & Sarah J. Young, in “Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools” (2007) 17 J. Legal Aspects Sport 53; Robert Nelson, “The Theory of the Waiver Scale: An Argument Why Parents Should Be Able to Waive their Children’s Tort Liability Claims” (2001-2002) 36 U.S.F. L. Rev. 535)

[60] I am of the opinion, however, reading the Infants Act as a whole that the legislature intended the Act to establish the sole means of creating contractual obligations that bind minors. In coming to this conclusion I place some weight upon the fact that the rationale for prohibiting parents and guardians from releasing infants’ claims after a cause of action has arisen applies with some force to pre-tort releases as well.

[61] The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort. The Defendant’s application is therefore dismissed.