bc injury law – Page 2 – BC INJURY LAW

RCMP “Voluntary” Wage Loss Payments Deducted from Member’s Tort Award

Written by ERIK MAGRAKEN on April 25, 2021. Posted in ICBC Wage Loss.

Reasons for judgment were published this week by the BC Court of Appeal addressing the common law principles of subrogation and double recovery in a BC tort claim.

In the recent case (Provost v. Dueck) the Plaintiff RCMP officer was involved in a crash and sued for damages. At trial he was awarded various damages including $27,500 for past income loss for the months his injuries disabled him from work. During this time of disability, however, the RCMP continued to pay his full wages. Payments for other various benefits were made as well. These payments “were not made pursuant to a collective agreement or any other contractual arrangement. Rather, they were made pursuant to the longstanding “practice or policy” of the RCMP to continue to pay the full wage benefits of injured officers during their convalescence“.

The BC Court of Appeal held that in these circumstances the RCMP enjoyed no true rights of subrogation and that the awards should not have been made in tort as they would constitute double recovery. In ordering a deduction of these damages from the Plaintiff’s award the BC Court of Appeal provided the following reasons:

ICBC Hit With Special Costs Award For “Reprehensible” Lawsuit Tactics

Written by ERIK MAGRAKEN on April 15, 2021. Posted in BC Supreme Court Costs Cases.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, finding ICBC is liable to pay special costs for ‘reprehensible’ conduct in litigation.

In the recent case (Zhang v. 328633 BC Ltd) the Plaintiff was injured while riding as a passenger in a bus. A truck driver made an unsafe lane change in front of the bus. This caused the bus driver to brake forcefully throwing the plaintiff from her seat leading to multiple injuries. The truck driver did not remain at the scene of the incident and was unknown. The Plaintiff sued both the bus driver and ICBC as a statutory defendant in place of the unidentified truck driver, a legal remedy available under s. 24 of the Insurance (Vehicle) Act. ICBC had video evidence from the bus as to what actually occurred but failed to produce this for years. They also denied that a s. 24 claim existed until deep into the trial.

The bus driver was not paying adequate attention at the time and the court found both the bus driver and truck driver shared liability.

As a result of ICBC’s late production of crucial evidence and unreasonable denial as to the merits of the s. 24 claim the presiding judge found ICBC should pay special costs. In reaching this conclusion Mr. Justice Branch provided the following reasons:

Court Tells Bikers its an Abuse of Process Denying Civil Liability Following Criminal Conviction

Written by ERIK MAGRAKEN on April 9, 2021. Posted in Uncategorized.

If you’re charged with a crime and plead guilty, or are found guilty to the criminal standard of ‘beyond a reasonable doubt’, it is generally considered an abuse of process to deny fault when sued for the same underlying conduct based on the lesser civil standard of ‘balance of probabilities’. Two members of a motorcycle club learned this lesson the hard way.

In the recent case (Thatcher v. Lowe) the Plaintiff sued several defendants for assault, battery, intentional infliction of mental suffering and false imprisonment following a 2016 confrontation. Prior to this defendants were charged criminally and plead guilty. The court summarized the following key facts from the guilty plea:

Sucker Punch in Bar Leads to $226,000 Civil Judgment Against School Teacher

Written by ERIK MAGRAKEN on April 1, 2021. Posted in Uncategorized.

Getting in a bar fight is seldom a good idea. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.

In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel. The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out. The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“. The court described it as “a thoroughly disgraceful incident.”

The Defendant was criminally charged and convicted of assault causing bodily harm. The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge. Mr. Justice Baird, presiding over the civil suit, opined “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”

The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.

In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:

$92,000 Diminished Capacity Award Despite “80-90%” Recovery From Chronic Soft Tissue Injuries

Written by ERIK MAGRAKEN on April 1, 2021. Posted in ICBC Wage Loss.

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered but lingering soft tissue injuries and chronic pain following a collision.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a collision caused by the Defendant. The Defendant accepted fault for the rear end crash. The collisions resulted in soft tissue injuries. Despite enjoying “80-90%” recovery the Plaintiff had lingering chronic pain and depression secondary to these injuries. The injuries were “expected to continue, to some degree, into the future as well. “.

The Plaintiff was employed as commercial transport mechanic. He missed considerable time from work but eventually was able to return. Despite this there was evidence that the lingering injuries were not particularly compatible with work of this physicality. In assessing damages for diminished earning capacity at $92,000 Madam Justice McDonald provided the following reasons:

Cyclist at Fault For Attempting To Pass Bus Re-Entering Flow of Traffic on the Right

Written by ERIK MAGRAKEN on March 16, 2021. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, dismissing a cyclist’s negligence action against a bus operator.

In today’s case (Coles v. British Columbia Transit Corporation) the Defendant was operating a bus and pulled over to let passengers on or off. At the same time the Plaintiff was operating a bicycle in the Defendant’s lane of travel. The Defendant put on her left signal indicating she was going to emerge back into the flow of traffic. The Plaintiff mistakenly believed the signal indicated the bus operator was going to make a lane change and attempted to pass the bus on the right hand side. This attempt failed and “he collided with the rear of the bus, came off his bicycle, landed on the ground, and broke his elbow.“.

The Plaintiff’s lawsuit was dismissed with the Court finding the bus driver did nothing negligent and fault rested with the cyclist. In reaching this decision Mr. Justice Baird provided the following reasons:

Baseball Bat Beating Leads to $7 million Damage Assessment

Written by ERIK MAGRAKEN on February 12, 2021. Posted in Cost of Future Care Cases, ICBC Brain Injury Cases.

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:

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

Written by ERIK MAGRAKEN on February 4, 2021. Posted in Uncategorized.

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:

Canadian Court Asserts Jurisdiction in Defamation Lawsuit Against Twitter

Written by ERIK MAGRAKEN on January 15, 2021. Posted in Uncategorized.

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:

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

Written by ERIK MAGRAKEN on January 7, 2021. Posted in BC Civil Resolution Tribunal.

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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