Tag: bc injury law

RCMP Constable Ordered to Pay $55,000 Following Wrongful Detention

Reasons for judgement were published today by the BC Supreme Court, Smithers Registry, ordering an RCMP constable and the crown to pay $55,000 in damages to a Plaintiff who was injured during a wrongful detention.

In today’s case (Joseph v Meier) the Plaintiff was shopping at a retail store when another woman shopping in the same area of the store put a scarf into her bag and then, when confronted, threw the scarf to the floor and fled.  The plaintiff, who was elderly with limited mobility, continued shopping.  The store manager mistakenly believed the two women were together and had the police called.

When the Defendant RCMP constable confronted the plaintiff she “refused to stop or provide information to him. She repeatedly told him that she had done nothing wrong and did not need to talk to him” .  He took her to the ground and attempted to handcuff her while she resisted.  The Plaintiff was injured in the altercation.  In finding the Constable liable for false arrest, false imprisonment, assault and battery Madam Justice Brown provided the following reasons:

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$72,500 Non Pecuniary Damages for Longstanding Back Injury With Some Room For Improvement

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing soft tissue injury with some room for improvement.

In today’s case (Lluncor v. Anderson) the Plaintiff was involved in a 2014 rear-end collision that the Defendant accepted fault for.  The crash resulted in a soft tissue injury to the Plaintiff’s back which lingered to the time of trial.  Despite the longstanding nature of the injury the Court found there was prospect for further improvement.  In assessing non pecuniary damages at $72,500 Mr. Justice Armstrong provided the following reasons:

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$85,000 Non-Pecuniary Assessment for Chronic but not Disabling Back Pain

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a long standing back injury sustained in two motor vehicle collisions.

In today’s case (Sehra v. Randhawa) the Plaintiff was involved in two separate collisions that the defendants accepted fault for.  These resulted in ‘chronic daily back pain’ with a poor prognosis for full recovery thought the injureis were not disabling and the plaintiff could still undertake various physically challenging activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Douglas provided the following reasons:

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$30,000 Non-Pecuniary Assessment for “Persistent, Enduring But Minor” Neck Injury

Reasons for judgement were published today by the BC Supreme Court, Nanaimo Registry, assessing damages for a relatively modest neck injury arising from a vehicle collision.

In today’s case (Chapman v. Zilm) the Plaintiff was involved in a 2016 intersection collision.  It was described as ‘low impact’.   The Defendant was found fully at fault for the crash. The impact caused a neck injury to the plaintiff which the court found was ‘persistent, enduring but thankfully quite minor‘ in its lingering consequences.  In assessing non-pecuniary damages at $30,000 Mr. Justice Baird provided the the following reasons:

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City Liable After Tenant Injures Other By Pouring Used Oil on a Fire

Reasons for judgement were published this week by the BC Court of Appeal dismissing an appeal of a jury finding liability after a tenant of a residential property owned by the City of Burnaby caused severe burns to a guest.

In today’s case (Abdi v Burnaby (City)) the Plaintiff, a young woman who was invited as a guest to a party at the Defendants property “suffered severe burns and her life was forever changed” after the Defendant tenant had a backyard fire and “poured used motor oil onto the fire from a bucket. The oil exploded onto Ms. Abdi, and she became covered in flames from neck‑to‑toe“.

There was evidence that the tenants “had a long history of having fires in the fire pit they created in their backyard, despite open fires being contrary to a City bylaw“.  There was further evidence that the City had some prior knowledge of this requiring, at least on one occasion, the City’s fire department having to attend the residence and extinguish a fire.  Following this incident the City did not follow up with any inspection of the property despite having a policy to conduct safety inspections of its residential properties.

At trial a jury found both the tenants and the City liable.  In dismissing an appeal of the City’s liability the BC Court of Appeal provided the following reasons:

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Defendant Relying on “Waving” Motorists Still Found Liable For Crash

Relying on another motorist waiving you through an intersection is no defense to an allegation of negligence if the intersection is in fact not clear.  Motorists must keep their own proper and clear lookout and relying on representations of others that ‘all is clear’ does not displace this duty.  This principle was demonstrated in reasons for judgement published today by the BC Supreme Court, New Westminster Registry.

In today’s case (St Denis v. Turner) the Defendant was stopped attempting to turn left at an intersection.  The first 2 of the 3 oncoming lanes of traffic had vehicles backed up at the intersection and these motorists apparently ‘waved on’ the Defendant.  As he proceeded with his turn and entered the final oncoming lane the plaintiff drove into the intersection and a collision occurred.  The Court found both motorists liable with the Defendant shouldering more of the blame.  In finding that relying on ‘waving on’ motorists was no defence to negligence Mr. Justice Funt provided the following reasons:

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CRT – No “Placeholder” Lawsuits To Preserve Future ICBC Benefits

In British Columbia the norm has long been that a collision victim could file a lawsuit against ICBC to preserve the right to future accident related medical/rehab benefits even if no past benefits were outstanding.  The reason was simple, contractually ICBC Part 7 benefits could be payable over many years.  However, if enough time passed without the need to access these benefits, the limitation period could expire thus thwarting the ability to claim future benefits if needed.  A simple court filing could prevent this from occurring.  The BC Supreme Court was reluctant to dismiss such claims understanding their role in preserving future benefits claims.

The BC Government has now diverted many ICBC disputes away from the courts and into a provincially created body known as the Civil Resolution Tribunal.  In the first CRT decision I’m aware of addressing this practice the CRT ruled that such claims will not be accepted and will be dismissed.

In the recent case (Mu v. ICBC) the Applicant filed a ‘placeholder’ lawsuit to preserve her right to seek future ICBC benefits after being involved in a collision.  No past benefits were outstanding.   As ICBC looked to move the dispute forward the Applicant asked the CRT to “pause” the proceeding until such time as a dispute arose to future benefits.  The CRT was not prepared to do so and ruled that under the new system placeholder claims to preserve limitation rights will not be allowed.  In reaching this decision CRT Vice Chair Andrea Ritchie provided the following reasons:

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“Hurried” Opinion That Chronic Pain Will “Inevitably Resolve” Rejected By Court

Adding to this site’s archives of judgements criticizing or rejecting expert opinion evidence reasons were published today by the BC Supreme Court dismissing the opinion of a defence retained orthopaedic surgeon commenting on chronic pain.

In today’s case (Adams v. Rhys-Williams) the Plaintiff was injured in a 2014 collision.  The Defendants admitted liability.  The crash resulted in injuries to the plaintiff which developed into myofascial pain and a chronic pain disorder.

In the course of the lawsuit the defendants retained a partially retired orthopaedic surgeon from Ontario who conducted an independent medical exam.  That surgeon opined that the Plaintiff’s injuries were not disabling and ought to “inevitably resolve“.  The Court rejected this opinion as being “hurried and more of an attempt to summarily dismiss the injuries claimed“.  In rejecting the evidence Mr. Justice Jenkins provided the following reasons:

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“Unlawful” Surreptitious Recording of Defense Medical Appointments Not Admissible At Trial

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, holding that a Plaintiff’s surreptitious recording of defence medical exams are not admissible at trial.

In today’s case (Cook v. Kang) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the defendant obtained a court order that the Plaintiff be assessed by defence selected physician.  The Plaintiff also consented to see a second defence physician on similar terms as the court ordered appointment.

The Plaintiff surreptitiously recorded both appointments.  This came to light during trial and the existence of the recordings was not disclosed to the defence ahead of time.  The Court ruled that the recordings were not admissible on two grounds, first because they were not listed in compliance with the rules, second that recordings of court ordered medical appointments are “unlawful” without an express term permitting this.

In excluding the evidence Mr. Justice Riley provided the following reasons:

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Late Offer to “Emotionally and Mentally Fragile” Plaintiff Fails To Trigger Costs Consequences

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, declining to award a Defendant trial costs despite the Plaintiff receiving judgement for less than their pre trial settlement offers.

In today’s case (Wiseman v. Wang) the Plaintiff was injured in a collision and sued for damages.  Prior to a February 19, 2019 trial the Defendant made two formal settlement offers.  On June 13, 2018 the Defendant offered to settle the plaintiff’s claims for $100,000 new money plus costs and was open for acceptance until 4:00 pm on the last business day prior to the commencement of trial.  A second offer was delivered on February 13, 2019 and offered to settle the plaintiff’s claims for $150,000 new money plus costs. It was also open for acceptance until 4:00 pm on the last business day before the commencement of trial.

At trial the Plaintiff’s damages were assessed at $79,000.  The Court noted that trial “could have resulted in a much higher award” but reliability problems with the Plaintiff’s own evidence prevented a more favourable result.

The Defendant sought trial costs in these circumstances but the Court declined.  In dismissing the defence application the Court noted that the Plaintiff was ‘emotionally and mentally fragile‘ and the timing of the second offer made it such that costs consequences should not be triggered.  Mr. Justice Davies provided the following reasons:

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
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