Tag: Madam Justice McDonald

$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:

Plaintiff Awarded Costs Despite Jury Awarding Damages Far Less than ICBC Formal Setttlement Offer

Written by ERIK MAGRAKEN on June 18, 2020. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, dismissing a defence application for costs and awarding a Plaintiff full costs despite receiving a jury award substantially smaller than a pre trial formal settlement offer.

In today’s case (Duarte v. McMillan) the Plaintiff was injured in a 2016 collision that the Defendant accepted fault for. The matter proceeded to trial by Jury, an election made by ICBC on the Defendants behalf.

Prior to trial the Plaintiff made a formal settlement offer for $175,000. The Defendant made several formal offers with the highest being $88,000 plus costs. At trial the jury awarded far less with global damages being assessed at $22,000 being comprised of $7,300 for costs of future care and loss of homemaking capacity and $14,700 for non-pecuniary damages.

ICBC sought to have the Plaintiff pay costs. The court declined and instead awarded the Plaintiff full costs finding with the evidence available it was reasonable to reject the settlement offer and proceed to trial. In reaching this decision Madam Justice McDonald provided the following reasons: