Tag: bc injury law

Baseball Bat Beating Leads to $7 million Damage Assessment

In a tragic case reasons for judgement were published by the BC Supreme Court, Kamloops Registry, assessing damages in a personal injury lawsuit at nearly $7 million following a baseball bat attack.

In the recent case (Simpson v. Teichrieb) the Defendant “savagely battered” the teenage plaintiff with a baseball bat leaving him with “a catastrophic brain injury, have left Jessie requiring constant care and eliminated any prospect of employability.“.

At the time of the assault the plaintiff was 18 years old, 5’5” in height and weighed about 135 pounds. The defendant was 39 years old, 6’0” tall and weighed about 220 pounds.  The Plaintiff was in the Defendant’s yard and the Defendant was concerned about possible theft.  He beat the plaintiff nearly to death resulting in “a severe skull fracture and significant brain swelling. He had facial fractures and a notable bruise to his lower back in the shape of a baseball bat.”.

The Defendant was criminally convicted and sentenced to prison.

The bulk of the assessed damages reflect estimates of a lifetime of lost earnings and future care.  In assessing non-pecuniary damages at Canada’s current rough upper limit of $393,000 Mr. Justice Dley provided the following reasons:

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Dental “Failure to Warn” Case Dismissed Where Court Finds Reasonable Person Would Have Consented To Risks

Reasons for judgement were published this week by the BC Court of Appeal finding that no error was made by a trial judge who dismissed a dental surgery negligence claim where risks of the procedure were not adequately canvassed with a patient.

In this week’s case (Warlow v. Sadeghi) the Plaintiff was a patient who underwent dental surgery by the Defendant.  The procedure resulted in an “injured a nerve in Ms. Warlow’s lower right jaw, resulting in permanent and debilitating nerve pain that has altered virtually every aspect of her life.“.  Prior to surgery the Defendant did not adequately inform the plaintiff of this potential risk.  Despite this the trial judge dismissed the claim finding a reasonable patient would have consented had the risk been canvassed.  In dississing the plaintiff’s appeal the BC Court of Appeal provided the following reasons:

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Canadian Court Asserts Jurisdiction in Defamation Lawsuit Against Twitter

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an application to decline jurisdiction of a defamation lawsuit against twitter.

In today’s case (Giustra v. Twitter, Inc.) the Plaintiff brought a lawsuit against Twitter claiming damages and an injunction for defamatory tweets authored by others and relayed on Twitter’s internet platform.  Twitter argued that the lawsuit should be brought in the US and that there the claim was bound to fail as they enjoy the protections of Section 230 of the Communications Decency Act of 1996, 47 USC (1996), which “protects freedom of speech on the internet by providing internet platforms such as Twitter with immunity against liability for tort claims arising from the dissemination of content from third-party users.

The BC Supreme Court was unpersuaded and found to the extent that the tweets were published in Canada, involving a Canadian plaintiff, making personal allegations against that plaintiff and causing harm to him in Canada with the Defendant having over 500,000 users here the Court was firmly within its rights to accept jurisdiction.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

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CRT Moves Ahead With “Minor Injury” Determination Despite Ongoing Indivisible Injury Litigation in BC Supreme Court

Reasons for judgement were published recently by BC’s Civil Resolution Tribunal declining to refuse to determine a minor injury determination dispute despite the party having previous injuries from previous crashes with ongoing litigation in the BC Supreme Court.

In the recent case (Godwin v. Bui) the parties were involved in a May, 2019 collision.  The Respondent was injured in the crash and proceedings were field in the CRT who wished to move ahead to decide both liability for the crash and whether the injuries at question were ‘minor’.

The Respondent noted it would be inappropriate to decide the issue as he was injured in two previous collisions that pre-date the CRT’s jurisdiction which were in active litigation in the BC Supreme Court.  He argued that “the issues are so intertwined with the other actions that it would be impractical for the CRT to make any minor injury determination in this dispute“.  The Applicant did not strongly oppose this with the CRT noting the Applicant “essentially agrees that all the matters should be heard together at the BCSC.“.

Despite this the CRT refused to decline to refuse their determination and noted they would go ahead with their decision.  In reaching this conclusion Vice Chair Andrea Ritchie provided the following reasons:

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Court Declines to Award Plaintiff Double Costs Where Adverse Liability Finding was a “Live Possibility”

Often times when a plaintiff is awarded damages beyond their formal settlement offer the BC Supreme Court awards double costs.  Such an outcome is discretionary and not automatic and occasionally double costs are declined.  Reasons for judgment were published this week by the BC Supreme Court, Chilliwack Registry, with such an outcome.

In this week’s case (Enns v. Corbett) the Plaintiff was injured in a collision and sued for damages.  The Plaintiff was awarded damages approximately $30,000 above their formal settlement offer.  Despite this the Court declined to award double costs noting there was a ‘live possibility‘ of an adverse liability outcome.

In reaching this conclusion Mr. Justice Riley provided the following reasons:

[7]             I do not agree with the plaintiff that the offer ought reasonably to have been accepted as contemplated in Rule 9-1(6)(a). Rather, I agree with the defendant that at the time the offer was made, there was uncertainty as to the strength of the plaintiff’s claim, due in large measure to issues of contributory negligence and potential apportionment of liability. Despite the live issues as to liability, the plaintiff’s offer expressly rested on the premise that the defendant would be found “fully liable” for the collision; it made no allowance for the contingent risk that the plaintiff might be found contributorily negligent, which was a live possibility based on the evidence available to the parties when the offer was made. To quote from the defendant’s submission, the plaintiff’s offer “did not account for the real risk that the plaintiff’s claim might have been dismissed entirely or that liability might be apportioned, based on information available to the parties at the time”. As explained in Owen v. Folster, 2019 BCSC 407 at para. 12, the plaintiff’s offer did not put forward a “genuine compromise or an incentive to settle” in view of the litigation risks, such that the defendant did not act unreasonably in declining to accept it.

[12]         In my view, the most telling feature of this case is the fact that the offer to settle was premised on the plaintiff’s position that the defendant would be found fully liable for the collision, when there were live issues as to apportionment of liability. In these circumstances, it cannot be said that the offer “ought reasonably to have been accepted”. The other factors are less important in this particular case. The judgment obtained at trial was higher than the amount in the offer, but only marginally so as a proportion of the overall amount in issue. And, although the defendant’s insurance coverage placed her at some degree of financial advantage in terms of the decision to proceed to trial, there is no evidence that the defendant or her insurer used their financial strength in an untoward manner. The plaintiff was successful at trial and is therefore entitled to costs of the action at Scale B, but not double costs.

$200,000 Non Pecuniary Damage Assessment for Chronic Disabling PTSD

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and disabling injuries following a fatal motor vehicle collision.

In this week’s case (Kempton v. Struke Estate) the Plaintiff was involved in a 2015 collision.  He was operating a tractor trailer when the Defendant, travelling in the opposite direction, crossed the centre line resulting in a head on crash.  The collision killed the Defendant instantly.   The Plaintiff suffered few physical injuries but sustained post traumatic stress disorder (“PTSD”) as a result of the horrific crash.  This condition disabled him and was not expected to improve.

In assessing non-pecuniary damages at $200,000 Mr. Justice Crerar provided the following reasons:

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Vehicle Lessor Awarded Damages for Accelerated Depreciation By BC Civil Resolution Tribunal

I’ve written many times about the law of ‘accelerated depreciation’ claims in BC.  In short when a vehicle is damaged in a crash it often suffers a loss of market value, even after all reasonable repairs are done.  ICBC routinely chooses to ignore this reality when dealing with crash victims and raises invalid arguments trying to deny such claims.  The damages for such claims can be pursued against the at fault motorist (through their liability insurance policy).

As was demonstrated in reasons published this week by BC’s Civil Resolution Tribunal there is no reason why such claims have to be limited to vehicle owner/operators but others with title interest in the vehicle can pursue such a claim.  In what I believe is one of the first times this issue was addressed the Tribunal found that a vehicle lessor can also obtain damages for accelerated depreciation.

In this week’s case (Dual Mechanical Ltd. v. Vicencio) the applicants (a vehicle lessor and lessee) vehicle was involved in a crash caused by the respondent.  The vehicle suffered an accelerated depreciation due to the damages from the crash.  The applicants brought a claim arguing one or the other of them should be entitled to the damages.  The CRT found that the vehicle lessor, given that title remained with them under the terms of the lease, was the appropriate party to be awarded these damages.  In reaching this decision Tribunal Member Lynn Scrivener provided the following reasons:

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Application for ICBC Wage Loss Benefits Dismissed For 7 Days of Disability

The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.

In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision.  His injuries caused him to miss 7 days of work.  He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits.  The CRT agreed and dismissed the applicant’s claim.  In doing so  Tribunal Member Kristen Gardner provided the following reasons:

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CRT Dismisses Applicant Request for ICBC To Pay Lump Sum Part 7 Benefits

Reasons for judgement were published earlier this month dismissing an applicants claim at the BC Civil Resolution Tribunal asking for ICBC to pay physiotherapy treatment expenses as a lump sum.

In the recent case (Smith v. ICBC) the self represented applicant was injured in a October, 2019 collision.  He required physiotherapy which ICBC paid for directly to the service provider.  The Applicant asked the CRT to award him $12,000 as a lump sum for treatment expenses.  The claim was dismissed with the CRT noting that while ICBC can pay a lump sum for treatment expenses doing so is entirely discretionary and continued payment of necessary treatments as they are incurred is acceptable.  In dismissing the claim Tribunal Member Kristen Gardner provided the following reasons:

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$60,000 Damages Awarded For Diminished Housekeeping Capacity

Reasons for judgement were published this month assessing damages for diminished housekeeping capacity at $60,000 following chronic collision related injuries.

In the recent case (Ploskon-Ciesla v. Brophy) the Plaintiff was involved in a 2017 collison that the Defendant admitted  fault for.  The collision caused a constellation of physical injuries which negatively impacted the Plaintiff recreationally,, vocationally and domestically.  In assessing $60,000 in damages for diminished housekeeping capacity over and above non-pecuniary damages Mr. Justice Ball 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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