Tag: bc injury law

Soccer Player Sentenced Following On-Field “Sucker Punch” Leading to Assault Conviction

Both civil and even criminal repercussions occasionally arise following recreational and even professional sporting assaults in Canada.  Reasons for sentencing were published this week by the BC Provincial Court highlighting a case of the latter.

In this week’s case (R v. Miletic) the Defendant sucker punched a fellow competitor during an adult league recreational soccer game in New Westminster, BC.  The punch “broke the victim’s orbital bone and caused him negative longer-term effects“.  At trial the Defendant was convicted of assault causing bodily harm.

The Court summarized the circumstances of the offence as follows:

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ICBC Psychiatric Expert Rejected As Not “Useful or Reliable”

Adding to this site’s archived case summaries rejecting expert evidence for improper bias or advocacy reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding an expert opinion by an ICBC expert deserved “limited, if any weight” for lacking usefulness or reliability.

In today’s case (Millar v. Wasden) the Plaintiff  was involved in a 2013 collision.  Fault was admitted by the Defendant.  The crash caused longlasting and disabling physical and psychiatric injuries.  In the course of the lawsuit ICBC retained a psychiatrist who provided the court with opinion evidence minimizing the connection of the collision to the plaintiff’s injuries.  In rejecting this evidence Mr. Justice Voith provided the following criticism:

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“Concerning” Affidavit Makes ICBC Benefits Deduction Application Come Up Short

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, largely rejecting an ICBC application to have future care benefits from a tort judgment significantly reduced.

In today’s case (Luck v. Shack) the Plaintiff was in a collision and was awarded damages for prolonged injuries including $85,000 for future care costs.  The Defendant argued that much of the services covered by this award can be accessed through ICBC no-fault benefits and asked that the award be reduced by $65,000.  The Court noted ‘concern‘ about ICBC’s affidavit evidence leaving some uncertainty as to whether discretionary no fault benefits would be paid or denied in the future.  In only allowing $3,540 in deductions Madam Justice MacDonald provided the following reasons:

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“Extremely Problematic” Testimony Gives Rise to Modest Damage Assessment For Chronic Injury

Given the personal and subjective ways chronic injuries can impact an individual giving reliable evidence is important.  If adverse credibility findings are made in the course of an injury trial this can significantly impact a court’s overall view of the evidence.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.

In today’s case (Kaur v. Tse) the Plaintiff was injured in a 2016 collison.  The Defendant admitted fault.  The Court found that the Plaintiff suffered from chronic myofascial cervical pain and chronic mechanical pain localized on her coccyx as a result of the collision and some symptoms were ongoing at the time of trial.  However non-pecuniary damages were only assessed at $17,000 in part due to mitigation issues and further in part to credibility issues the court had with the Plaintiff’s evidence.  In reaching this quantum and criticizing aspects of the Plaintiff’s evidence Madam Justice Tucker provided the following reasons:

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StatsCanada Earnings Data Ruled Admissible in Injury Trial Without Economist or Other Introductory Witness

Helpful reasons for judgement were recently shared with me finding that StatsCan evidence about wages were admissible in a personal injury trial even without them being incorporated in an economists report or otherwise being introduced by a witness.

In the recent case (Reddy v. Enokson) the Plaintiff was seeking damages following injuries in a vehicle collision.  In the course of the trial the Plaintiff sought to introduce data from StatsCan “concerning the average hourly wage rate of persons 15 years and over in Canada“.   The Defendant objected arguing “these statistics ought not to replace a proper expert’s opinion. ”

Mr. Justice Blok found the evidence admissible as a public document meeting the admissibility provisions of s. 29 of BC’s Evidence Act.

In reaching this conclusion the Court provided the following reasons:

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Jury Notice Struck So Judge Alone Trial Can Proceed Amidst Covid-19 Pandemic

Reasons were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice so a trial could proceed without the need for a lengthy adjournment.

In today’s case (Vacchiano v. Chen) the Plaintiff was injured in a 2015 collision.  Both liability and damages were contested.  ICBC elected trial by jury which was scheduled in July, 2020.  Due to Covid-19 all civil jury selections were suspended and jury trials cancelled up to and including September 7, 2020 everywhere in the province.  As a result the trial would face a lengthy adjournment, about 2 years, if the matter was to proceed with a jury.

The Plaintiff brought an application for the jury notice to be struck.  The Court agreed that doing so would be fair as a 2 year adjournment would be more prejudicial to the parties than the Defendant losing their prefered mode of trial.  In reaching this decision Master Muir provided the following reasons:

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Trial Adjourned Where IME’s “Frustrated” Due to Misunderstanding of Covid-19 Related Deadlines

Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.

In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist.  When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting

We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.

We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.

The Plaintiff did not attend.  Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel.  In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.

The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons:

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Court Rejects Expert Witness Who Gave “Evidence Unworthy of Reliance”

In one of the stronger judicial reasons rejecting expert witness evidence that I have read in recent years reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, finding a defence expert gave evidence that was superficial, out of his area of expertise and “unworthy of reliance“.

In today’s case (Radewulf v. Kelly) the Plaintiff sustained chronic and disabling injuries in two collisions.  The Defendants retained an orthopaedic surgeon who provided the court with evidence minimizing the plaintiff’s symptoms and their connection to the collisions.  In outright rejecting this opinion the Court provided the following critical reasons noting that even the defence lawyer backed away from the witness’ opinions:

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Browne v. Dunn Not Violated Where It is “Obvious That The Cross‑Examiner Intends To Impeach The Witness’s Testimony”

Today reasons for judgment were published by the BC Court of Appeal upholding a trial decision finding a motorist in breach of his insurance coverage due to impairment.  In doing so the Court outlined limitations on the successful use of the Rule in Browne v. Dunn.

The rule in Browne v. Dunn generally requires that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross‑examination while he or she is testifying.

In today’s case (Hamman v. ICBC) the Appellant caused personal injuries and property damage in a motor vehicle collision.  ICBC denied coverage arguing he was impaired.  Following the collision various evidence was gathered documenting the appellants possible impairment.  At trial ICBC relied on the evidence of a Sgt. who “made observations of the appellant consistent with impairment“.  The notes of this Sgt. were shared with the appellant prior to trial.

During the course of trial the appellant testified and in cross examination the Sgt.’s observations were not put to him for comment.  He argued this violated the rule in Browne v. Dunn.  The BC Court of Appeal disagreed noting in some cases it is so obvious that testimony impeachment is in play that the rule is not violated.  In reaching this conclusion the court provided the following reasons:

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No Adjournment For Unilaterally Scheduled Trial During Defence Counsels Possible Vacation Time

Reasons for judgement were published today dismissing an adjournment application for a trial that was unilaterally set down during a time that opposing counsel kept free for a possible vacation.  In part the Court noted that the vacation plans may very well be off due to the Covid-19 pandemic.

In today’s case (Henderson v. Fisher) the Plaintiff claimed damages for injuries sustained in a collision.  The matter was set for trial on January, 2020 but this was adjourned because no judge was available.  The parties could not agree on a date to reset the trial for.  The Plaintiff unilaterally set the matter down for September, 2020, a month that the Defence lawyer booked off “for a personal vacation out of the country“.  An application to adjourn was dismissed with the Court noting the vacation plans may very well be thwarted due to Covid19.

In dismissing the application Mr. Justice Branch 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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