Tag: bc injury law

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

Written by ERIK MAGRAKEN on June 16, 2020. Posted in Civil Procedure.

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:

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

Written by ERIK MAGRAKEN on June 12, 2020. Posted in BCSC Civil Rule 12.

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:

Motorist Who Had Seizure At Fault For Crash for Failing to Take Medication

Written by ERIK MAGRAKEN on June 12, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a motorist solely liable for a multiple vehicle collision after losing control due to a seizure. While there can sometimes be no negligence in such a case here the Court found the Defendant failed to take prescribed medication and it was negligent for him to be operating his vehicle in the circumstances.

In today’s case (Goronzy v. Mcdonald) the Defendant was driving northbound across a bridge. Before reaching the crest of the south side of the bridge, he suffered a grand mal seizure, crossed through the yellow plastic pylons that separated the north and south bound lanes, and struck a taxi, as it travelled southward in the left lane.

It was alleged that the Defendant was not taking his medication contrary to medical advice and should have known he should not have been driving and should have foreseen a grand mal seizure. The Court agreed. In finding him liable for the crash Madam Justice Humphries provided the following reasons:

10% and 15% Contributory Negligence Findings for Failure to Wear a Seatbelt

Written by ERIK MAGRAKEN on June 12, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allocating contributory negligence to plaintiffs who were injured in a vehicle collision without their seatbelt.

In today’s case (Goronzy v. Mcdonald) a multi vehicle collision occurred. Two of the plaintiffs who sustained injuries were not wearing a seatbelt and, as a result, were found partly at fault for their own injuries. In particular the driver of a taxi was found 10% contributorily negligent and his rear seat passenger 15%.

In reaching these differing percentages Madam Justice Humphries provided the following reasons:

ICBC Expert that Testified “he could not have been in error” Rejected by BC Supreme Court

Written by ERIK MAGRAKEN on June 11, 2020. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, assessing damages for chronic pain and anxiety following a vehicle collision.

In the course of the claim ICBC’s expert witness whose opinion was “predicated on inaccurate and critical factual assumptions” was rejected.

In the recent case (Nadeau v. Toulmin) the Plaintiff was involved in a 2016 collision. The crash resulted in chronic pain and anxiety. In the course of litigation ICBC retained a physician who provided opinion evidence minimizing the plaintiff’s injuries and their connection to the collision. In finding that the court was “unable to give his opinions any weight” the following critical reasons were provided by Mr. Justice Walker:

Insurance Medical Expert Rejected as “Combative, Argumentative and Arrogant”

Written by ERIK MAGRAKEN on June 10, 2020. Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court rejecting and harshly criticising the opinion evidence of doctor hired to provide a defence medical opinion in a personal injury claim.

In today’s case (Chavez-Babcock v. Peerens) the Plaintiff was involved in a 2014 collison that the Defendant admitted fault for. The crash resulted in chronic soft tissue injuries. In the course of the lawsuit the Defendants insurer hired an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s symptoms to the crash. In rejecting this opinion and the physicians evidence as combative, argumentative and arrogant Madam Justice Matthews provided the following reasons:

BC Court of Appeal – It Is Negligent To “Not See What’s There To Be Seen”

Written by ERIK MAGRAKEN on June 9, 2020. Posted in ICBC Liability (fault) Cases.

“I never saw the other vehicle before the crash” is rarely a satisfactory answer in absolving a party from liability. Reasons for judgement were published today by the BC Court of Appeal discussing this principle finding that it is reversible legal error not to consider if a party is liable for failing to see something that is there to be seen.

In today’s case (Sharma v. Kandola) the Plaintiff was injured in a two vehicle collision. At the time she was in the process of making a U‑turn from the south to the north side of the street in a school zone. The Defendant, who was travelling behind her, attempted to pass her in the westbound lane. The vehicles collided. The Plaintiff never saw the Defendant prior to the crash.

At trial the Court found the Defendant fully liable for “travelling too close to Ms. Sharma’s car and driving too fast, he failed to keep a proper look out, and he was attempting to pass Ms. Sharma’s vehicle in the westbound lane, an activity prohibited in a school zone“.

The Defendant appealed. The BC Court of Appeal found that the Defendant was largely to blame but the plaintiff also bore some liability for failing to see the Defendant prior to the crash. In reaching this decision the Court provided the following reasons:

Plaintiff Lawyer Copies of MSP and Pharmanet Printouts Subject to Litigation Privilege

Written by ERIK MAGRAKEN on June 5, 2020. Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, finding that plaintiff’s counsel was correct in listing ‘copies’ of MSP and pharmanet printouts as privileged and refusing to produce a copy to the Defendant.

In today’s case (Kang v. Sahota) the plaintiff was advancing an injury claim and in the course of doing so plaintiff’s counsel ordered copies of their clients MSP and Pharmanet printouts. These were used as tools in deciding what further records to order to advance the claim. The Defendant brought an application for production of these records. The Court dismissed this noting that counsel was correct to list these as privileged and the application should seek production of these directly from the Ministry of Health. In reaching this decision Mr. Justice Riley provided the following reasons:

Court Says Plaintiff Should Have Questioned Hells Angels in Unidentified Motorist Claim

Written by ERIK MAGRAKEN on June 4, 2020. Posted in Uncategorized.

Reasons for judgement were published this week dismissing a Plaintiff’s unidentified motorist ICBC claim finding he failed to take reasonable efforts to follow up on the identify of the unknown motorist with the Hells Angels.

In the recent case (Gorst v. ICBC) the Plaintiff was riding a motorcycle and was passed by a group of bikers travelling in the opposite direction. One of the biker’s entered the plaintiff’s lane causing him to take evasive action leading to his collision and injuries. The biker carried on and remained unidentified.

The Plaintiff sued ICBC under the unidentified motorist provisions. The Court found the unidentified biker was indeed partly liable for the crash but dismissed the claim finding the Plaintiff could have made further inquiries with the bikers as to the identity of the offending motorist. The Plaintiff claimed he was fearful to do so as they were believed to be Hell’s Angels. The Court found that was not a satisfactory excuse and in dismissing this aspect of the claim Mr. Justice Hori provided the following reasons:

CRT Dismisses Accelerated Depreciation Claim Because Applicant Named Wrong Party

Written by ERIK MAGRAKEN on May 29, 2020. Posted in BC Civil Resolution Tribunal.

Reasons for judgement were recently published by BC’s Civil Resolution Tribunal (“CRT”) dismissing a claim for accelerated depreciation following a serious vehicle collision because the applicant named the wrong party.

In the recent case (Liang v. ICBC) the Applicant’s vehicle was involved in a collision where it sustained over $17,000 in damages. When the vehicle was repaired the Applicant believed its market value was compromised with an accelerated depreciation of several thousand dollars.

Instead of suing the at fault motorists she sued ICBC who presumably were their insurance company. The CRT dismissed the claim finding that the wrong party was sued. Legally it is true that ICBC would not be contractually liable to pay for accelerated depreciation to a plaintiff as that is a tort claim and such cases do need to be brought directly against negligent motorists, not their insurance company. Insurers do, however, pay damages for accelerated depreciation once their insured at fault motorist is held liable.

Interestingly the CRT refused to substitute the motorists in for ICBC finding that since the limitation period expired it would be prejudicial to do so. It is a bit difficult to follow this logic, assuming ICBC was the motorists insurer, as they are the ones who would ultimately be dealing with the claim in any event once the correct parties were named. The Applicant appeared reluctant to name the correct party at the outset which is equally hard to understand. It is worth noting that the BC Supreme Court can and regularly does allow the addition/substitution of parties after the expiration of a lawsuit and does so quite frequently. In any event below are the reasons Vice Chair Andrea Richie provided in dismissing the claim: