Tag: bc injury law

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

Written by ERIK MAGRAKEN on January 28, 2020. Posted in Uncategorized.

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:

No Weight Given to “Simply Conclusory” Defence Medical Opinion

Written by ERIK MAGRAKEN on January 28, 2020. Posted in Uncategorized.

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:

Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

Written by ERIK MAGRAKEN on January 24, 2020. Posted in ICBC Liability (fault) Cases.

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:

Court of Appeal Upholds Jury Chronic Pain Award Despite Inappropriate Submissions by Counsel

Written by ERIK MAGRAKEN on January 23, 2020. Posted in Civil Procedure, ICBC Chronic Pain Cases, Jury Trials.

Reasons for judgement were published today by the BC Court of Appeal dismissing an application for a new trial following a jury award in a chronic pain case.

In today’s case (Brown v. Goodacre) the Plaintiff was injured in a rear end collision that the Defendant was liable for. The crash resulted in chronic pain and a jury awarded the plaintiff $847,000 in total damages.

The Defendant appealed seeking a new trial arguing plaintiff’s counsel made inappropriate submissions during the trial including

(i) personalizing the case by bringing himself into the opening statement and closing submissions;

(ii) giving his personal opinion on the issues, including putting his personal stamp of approval on the merits of his client’s case;

(iii) giving engineering evidence in the guise of a common sense observation; and

(iv) in one case, quoting a statement from a medical report that was not in evidence at trial.

The Court of Appeal noted that while some of the comments were not appropriate a failure to object during trial coupled with the trial judge’s caution to the jury about many of these comments meant no new trial was warranted. In reaching this decision the Court of Appeal provided the following reasons:

Mother Found 50% at Fault For Striking Her Son With Vehicle

Written by ERIK MAGRAKEN on January 22, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing fault following the somewhat unusual fact pattern of a mother striking her own son with a vehicle.

In today’s case (Pringle v. Pringle) the Court described the circumstances and some of the evidence surrounding the collision as follows:

[2] The collision took place after midnight, in a roundabout driveway just outside Mr. Pringle’s apartment building. Mrs. Pringle had driven over to speak with Mr. Pringle. Mr. Pringle’s sister, Emily Pringle, accompanied her mother. The visit had not gone well. It ended when Mr. Pringle told his visitors to leave and threatened to call the police. They did as he asked, but Mrs. Pringle accidentally took Mr. Pringle’s keys with her when she left. They met in the driveway a short while later to return the keys.

[3] Immediately before the collision, Mrs. Pringle was at the wheel of her car with the ignition on. Emily was sitting in the front seat on the passenger side. Mr. Pringle was standing outside the car. Mr. Pringle and Mrs. Pringle were arguing through an open window.

[4] Mr. Pringle testifies that what happened next was that Mrs. Pringle began to drive away, circling the roundabout, while he was standing on the roadway. Mrs. Pringle was driving angrily and recklessly. When he realized that she was driving back towards him and was not going to veer away, he jumped and was hit by the moving car’s windshield.

The Court found both parties equally liable for the crash. In faulting both the driver and pedestrian Mr. Justice Gomery provided the following reasons:

Bus Driver Not Liable For Injuring Passengers By Braking Hard to Avoid Pedestrian

Written by ERIK MAGRAKEN on January 22, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, dismissing a negligence claim against a bus driver whose hard braking injured several passengers.

In today’s case (Clarkson v Elding) multiple plaintiffs sued for damages following injuries sustained while passengers on a bus. The Defendant operator “braked suddenly to avoid a collision with a pedestrian who was jaywalking across East Hastings.” The resulting force of the braking “caused many passengers on the bus, including the plaintiffs, to fall or be slammed against seats and/or other passengers“.

The claims were dismissed with the court finding no negligence in these circumstances. In reaching this conclusion Madam Justice Horsman provided the following reasons:

ICBC Effort To Remove Case From Supreme Court Fails

Written by ERIK MAGRAKEN on January 18, 2020. Posted in Uncategorized.

While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.

Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.

In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages. After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.

The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction. In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:

$90,000 Non Pecuniary Assessment for Chronic, Partly Limiting Soft Tissue Injuries

Written by ERIK MAGRAKEN on January 9, 2020. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries following a vehicle collision.

In today’s case (Lewis v. Wang) the Plaintiff was involved in an intersection collision in 2014. The Defendant denied fault until shortly before trial .

The Court accepted the collision caused chronic soft tissue injuries which were expected to continue into the future and were partly limiting. The Defendant called medical evidence minimizing the collison’s connections to the injuries but this was rejected. In assessing non-pecuniary damages at $90,000 Mr. Justice Macintosh provided the following reasons:

$229K in Damages Awarded for “Relentless” and “Extensive” Internet Defamation Postings

Written by ERIK MAGRAKEN on January 3, 2020. Posted in Uncategorized.

Reasons for judgment were released earlier this year (and published this week) by the BC Supreme Court, Vancouver Registry, awarding just over $229,000 in damages to a Plaintiff on the receiving end of a “relentless” and “extensive” on line defamation campaign.

In today’s case (Rook v. Halcrow) the parties were involved in a romantic relationship. Shortly after it came to an end several on line postings were published across multiple platforms making disparaging remarks about the Plaintiff.

The Defendant denied making the multiple postings but the Court rejected this and found her liable for them. In assessing general damages at $175,000, aggravated damages at $25,000 and further awarding special damages related to the Plaintiff hiring a reputation management company to remove the posts Mr. Justice Myers provided the following reasons:

Landlords Found Not Liable for Tenant Dog Attack

Written by ERIK MAGRAKEN on December 27, 2019. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, dismissing an injury claim following a dog attack.

In this week’s case (Ali v. Samra) the Plaintiff was walking to a park when a pitbull left a nearby property and attacked him in an alley where he was walking. The incident was described as follows:

On May 3, 2015, the plaintiff left his house to meet his friends at a nearby school playground. As he had done on many occasions, he walked down the alley at the back of his house and reached the corner of the alley at 98A Avenue and 132A Street in Surrey, British Columbia, when a brown pit bull came from a nearby property at 13232 – 98A Avenue, (the “Property”), and ran towards him. The plaintiff ran away from the dog but it jumped on him and bit him severely on the back and under an arm. He had done nothing to provoke the dog.

The Plaintiff sued the homeowner where the dog came from along with tenants who supposedly owned the dog. At the time of the attack the homeowners did not occupy the residence rather it was leased out to a tenant who sub leased the property to recovering heroin addicts. The terms of the homeowners lease specified that no pets were permitted.

The Plaintiff sued the homeowner under the Occupier’s Liability Act and under the doctrines of negligence and scienter. All three claims failed with the Mr. Justice Bowden providing the following reasons: