Tag: Mr. Justice Branch

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:

$110,000 Non-Pecuniary Assessment For Thoracic Outlet Syndrome and Chronic Pain

Written by ERIK MAGRAKEN on January 8, 2020. Posted in ICBC Thoracic Outlet Syndrome Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in multiple vehicle collisions.

In today’s case (Winick v. Goddard) the Plaintiff was involved in 3 collisions. The Defendants admitted fault for all. The collisions resulted in chronic soft tissue injuries and thoracic outlet syndrome. Her symptoms were found to be likely permanent, partly disabling and not to improve significantly in the future. In assessing non-pecuniary damages at $110,000 Mr. Justice Branch provided the following reasons:

Court Entitled To Rely on Civil Jury Instructions For Present Value Calculations

Written by admin on March 12, 2019. Posted in Uncategorized.

When awarding damages for future losses BC Courts have an obligation to use appropriate present value multipliers in arriving at the lump sum awarded. Normally this is achieved by relying on expert evidence in personal injury cases. Given the BC Government’s recent restrictions on expert evidence Justices will likely have increasingly fewer such reports to assist them.
To this end an interesting footnote appeared at the end of a recent personal injury judgment. In the recent case (MacGregor v. Bergen) the Plaintiff was injured in a 2013 collision. The crash left the plaintiff with residual partial disability. Damages were awarded for past and future losses. The Court noted that no expert evidence was led by either party addressing preset value calculations but this was not a problem as the Court could simply rely on the multipliers provided in BC’s Civil Jury Instructions. In explaining why this was appropriate Mr. Justice Branch provided the following thoughts in a footnote to his reasons for judgement:
Neither party provided expert testimony as to the appropriate present value multipliers. However, I find that I have an obligation to account for the present value of the future losses pursuant to s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Multipliers are calculated using the designated 1.5% for the present value of future income loss and 2% for any other future losses. The amounts presented for female police officers and female university graduates were determined by inflating the 2015 data provided by Mr. Turnbull to 2018 dollars (resulting in figures of $99,300 versus $67,700), calculating the difference of $31,600, and then applying a present value multiplier of 26.23, assuming a retirement age of 65 (37 years hence). I find that I am entitled to make use of the multipliers provided at Appendix E of the Civil Jury Instructions for this purpose. I note that the court has relied on the Civil Jury Instructions for this purpose in other cases where expert evidence was not made available: Smith v. Fremlin, 2013 BCSC 800 at para. 38; Erickson v. Bowie, 2007 BCSC 1465 at para. 51, footnote 3; Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 at para. 57; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; Duifhuis v. Bloom, 2013 BCSC 1180 at para. 62; Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 at para. 70.

$150,000 Non-Pecuniary Assessment for Chronic Facet Joint Syndrome

Written by admin on October 19, 2017. Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases.

Reasons for judgement were release today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a motor vehicle collision.
In today’s case (Zwinge v. Neylan) the Plaintiff was invoked in a head on crash that the Defendant admitted responsibility for. The collision resulted in a chronic facet joint syndrome of the spine, various soft tissue injuries and chronic pain leading to psychological difficulties. This was imposed on pre-existing a substance abuse disorder. The prognosis for recovery was poor. In assessing non-pecuniary damages at $150,000 Mr. Justice Branch provided the following reasons:

[68] In this case, I would summarize the significant factors as follows:

1. The plaintiff was 49 years old at the time of the trial and 46 at the time of the accident.

2. The substantial head-on collision caused long-lasting soft tissue injuries and spine facet joint syndrome.

3. The plaintiff’s pain has, to this point, disabled him from working in any capacity, and has significantly reduced the quality of his life.

4. The plaintiff suffers from depression as a result of the loss of his ability to work, and to play with his children.

5. The plaintiff’s anxiety and physical condition have prevented him from driving, and have made routine chores out in public difficult.

6. While the plaintiff has some prospect for recovery, his prognosis is guarded. Specifically, I find that Dr. Rickard’s confidence in the proposed radio frequency ablation treatment is overstated: see Gregory at paras. 56-58.

7. The plaintiff suffered from a pre-existing and active Substance Use Disorder, and he did not seek further counselling for this problem after the accident.

8. Since the accident, the plaintiff suffered from pneumonia, pancreatitis and diabetes, all of which would have occurred in any event.

9. The plaintiff’s quality of life was already in a diminished state before the accident, in that he was living with his parents following a marriage breakdown that ended violently, resulting in criminal charges and a return to heavy drinking.

10. The plaintiff has been able to live independently and care for himself since the accident.

…

[71] Applying the factors above, and with the guidance from the noted case law, I find that the appropriate amount for non-pecuniary damages is $150,000.