Tag: bc injury law

Lawyers Changing Firms and Disbursement Carriage

When a lawyer changes firms clients usually have a choice of whether to stay with their present firm or follow their lawyer to the new firm.  In the case of personal injury files prosecuted on a contingency basis there are often disbursements associated with the files.  When a client wishes to follow their lawyer to a new firm and have their file transfered who has the burden of paying for the disbursements?  Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, tackling this issue.

In today’s case (Sagert v. Cascade Law Corporation) the Petitioner’s employment with the Respondent law firm ended.  Approximately 58 of the Petitioner’s clients elected to have their claims stay with the Petitioner.  The Respondent firm had incurred disbursements on these files.  The firm argued that these had to be paid before the files would be transferred.  The Petitioner brought an application to have the files transferred without up front payment of disbursements.  The Court concluded that the firm was within their right to demand payment of disbursements prior to transfer.  In reaching this conclusion Mr. Justice Wilson provided the following reasons:

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$100,000 Non-Pecuniary Assessment For Incompletely Healed Tibia Fracture from Snowmobile Collision

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic leg injury following a snowmobile collision.

In today’s case (Carothers v. Imus) the Plaintiff was a passenger on a snowmobile that collided with another snowmobile crushing the plaintiff’s left leg in between the two snowmobiles.

The impact resulted in  a tibial fracture that required surgical intervention.  The injury went on to incomplete resolution and resulted in chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Horsman provided the following reasons:

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Court Criticizes ICBC “Failure” To Pay For Necessary Treatments Highlighting Shortcomings of their so called “Care Based” Model

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

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Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense.   Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable.  Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant.  The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident.  The Court disagreed and dismissed the claim.  In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

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$42,000 Non-Pecuniary Assessmet for Finger Injury to “Skilled Piano Player”

One of the hallmarks of the current justice system in BC is individuals are treated uniquely when having their injuries and losses assessed.  Something the current government is hoping to take away with their proposed ICBC no fault system.  Reasons for judgement were published today showing this assessment of individual justice in action.

In today’s case (Fung v. Dhaliwal) the Plaintiff was injured in a 2013 collision.  Most of the injuries were transient and fully healed.  The Plaintiff, however, also suffered a cut to the middle of his long finger which went on to cause long term dysfunction.  The level of impairment was modest in most areas of life however the young plaintiff was a ‘skilled piano player’ and took great joy in this activity.  The injury compromised his musical abilities.  In assessing this unique loss and assessing non-pecuniary damages at $42,000 Madam Justice Forth provided the following reasons:

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$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2015 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection.   The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome.  By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist.  In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

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ICBC Trial Preparation Neglect “Deserves Sanction and Rebuke”

The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.

In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages.  Fault was admitted by the Defendants and the matter was set for a 10 day trial.  The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.

The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy.  The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payable forthwith

The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“.  In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:

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ICBC Changing Counsel at “11th Hour” Not an “Emergent Circumstance” Justifying Short Leave

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, dismissing short leave for three ‘last minute‘ applications.

In the recent case (Agelakis v. Xu) the Plaintiff was injured in a collision and sued for damages. One month before trial ICBC brought in a new defence lawyer.  Two weeks before trial that lawyer sought short leave for three applications, namely for document disclosure; a further examination for discovery of the plaintiff; and removal of the proceedings from fast track litigation.

The Court held that these applications may have been dismissed on the merits however short leave was simply not appropriate as these last minute request would unfairly cause ‘dramatic upheaval‘ to the Plaintiff’s trial preparation efforts.  In dismissing the request for short leave Master Muir provided the following reasons:

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No Weight Given to “Simply Conclusory” Defence Medical Opinion

Adding to this site’s archived posts of judicial criticism of expert witness advocacy or otherwise unsatisforcy expert opinions, reasons for judgement were recently brought to my attention finding that ‘no weight‘ should be attached to an expert that provided a ‘simply conclusory‘ opinion.

In the recent case (Tzotzolis v. Wyman) the Plaintiff was involved in a 2016 rear-end collision.  Following the crash the Plaintiff suffered from persistent lower back pain.  Although the case involved a BC crash ICBC retained a physician based out of Ontario who occasionally flies to BC to provide an independent medical exam.  That physician opined that the persistent back pain the Plaintiff suffered from was not related to the crash which was merely coincidental.  In rejecting this opinion and finding it deserves ‘no weight’ Mr. Justice Saunders provided the following comments:

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Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane.  As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.”  The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane.  In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson 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!”
Erik’s Philosophy

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