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Tag: BC Infants Act

Contingency Fees and Catastrophic Infant Claims Discussed

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.


Nature of

Settlement Amount

Settlement Timing

Legal Fee Sought

Hours Estimated

Fee A

Harrington v Royal Columbia
1995 CanLII 2345 (BCCA)

Medical malpractice

$1.5 million and  costs

3 days < trial


Estimate of 800 hours not accepted by
trial judge; 280 hours accepted


Richardson v Low
1996 CanLII 571

Medical malpractice (birth case)

$2.27 million

Settled well before trial


Court says no basis to estimate time but must be less than 260 hours


Cook v
1996 CanLII 1394

Medical malpractice

$2.6 million

Settled on 1st day of trial


Non recorded


Adams v Emmott
1997 CanLII 746

Medical malpractice (birth case)

$3 million

Settled Thursday before
Tuesday trial


300 hours estimate by Court


Chong v
1997 CanLII 4362

Medical malpractice (birth case)

$2.5 million

After 1 week of trial


2131.2 hours
for counsel
and 654.9 for paralegals and students


Renaerts v Korn
1998 CanLII 4979

Medical malpractice (birth and abandonment; intentional infliction of harm)

$8 million

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


Bizove v
2003 BCSC 1615 (CanLII)

Medical malpractice (birth case)

$3.566 million

3 days before trial


740 hours (3 senior counsel)


Makowsky v
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


136 hours recorded but Court suggests they must have exceeded 200 hours


Strachan v
2005 BCSC 59

Medical malpractice (birth case)

$4 million

2nd day of 2 week trial


Recorded time for 3 senior counsel 484 hours


Delaronde v.
2000 BCSC

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

(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

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.