Tag: personal injury claim

Mistrial Declared for Opening Statement that Went "Over the Line"

In March, 2008, Mr. Justice Cole declared a mistrial after he found that the Plaintiff’s lawyer went “over the line” in his opening statements. The judges oral reasons were released in writing today.
Negligence (fault for the accident) was admitted by the defence lawyers. The Plaintiff lawyer, in the opening address to the jury, stated that ‘the defendant must pay for breaching the rules of the road.’ and referred to the defendant as falling asleep at the wheel of his car, causing the accident‘. The court characterized the general theme of the opening comments “such as to create an atmosphere of sympathy for the Plaintiff.”
The court concluced that the Plaintiff lawyer ‘did go over the line‘ and that ordering a mistrial is the ‘only fair thing to do.’
The result of the mistrial is that the jury is dismissed and the matter has to be reset for trial on a later date. Such a result brings with it delay and expense, commonly referred to as the ‘twin evils’ in the BC civil justice system.
Reading this case made me wonder whether jurors would be inflamed by such opening statements. Personally I struggle in thinking that a reasonable jury would be inflamed to such a degree by this statement that their whole view of the case would be unjustly prejudiced.
Even the judge acknowledged that ‘no one can ever tell’ if this statement caused damage to the juries ability to fairly hear the case.
In BC it is improper for lawyers to talk to jurors after the fact and poll them about their decision.  Specifically, in 1967 the BC Court of Appeal stated that lawyers who poll jurors after verdict would be in contempt of court.  This has been severely critisized by many including fellow blogger and former BC Supreme Court judge John Bouck.
Since the jurors can’t be polled I thought I’d ask my readers. What do you think? If you were sitting on a jury involving an ICBC injury claim, and the plaintiff’s lawyer told you that the Defendant fell asleep at the wheel and ‘must pay for breaching the rules of the road’ would your judgment be compromised? Would your ability to fairly value the plaintiff’s injuries be compromised? Would you feel a need to punish the defendant by awarding the Plaintiff an overly generous amount of compensation?
Please feel free to leave comments or e-mail me privately.
Do you have questions about this case or an ICBC injury claim? If so click here to arrange your free consultation with Victoria ICBC claims lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)

BC Court of Appeal Dismisses "Black Ice" Claim

Today reasons for judgment were released by the BC Court of Appeal dismissing the appeal of a very seriously injured Plaintiff who was involved in a single vehicle collision in 1998.
The Plaintiff was involved in a terrible motor vehicle accident. While driving from Tsawwassen to Vancouver on a January morning, his vehicle “left the road and overturned in the adjacent field. (he was) seriously and permanently injured, and had no recollection of the accident”.
There were, unfortunately, no witnesses to the accident itself.
When advancing a personal injury tort claim in BC, the Plaintiff has the burden of proof to prove why someone else is at fault for the accident. That is certainly difficult if the accident results in injuries that are so serious that they leave a person ‘with no recollection’ and even more difficult if there are no witnesses.
The Plaintiff sued the Ministry of Transportation and Highways and the contractor responsible for that particular stretch of roadway. The allegation was that they failed to adequately perform their maintenence duties. In other words, saying they should have and could have removed black ice from the scene of the accident.
The trial judge concluded that the Plaintiff failed to prove that the accident was caused by black ice and the claim was dismissed. The BC Court of Appeal dismissed the appeal concluding that “the trial judge made none of the errors alleged (on appeal). His findings of fact were well supported by the evidence.”
In reaching this conclusion the Court stated that:
The trial judge made no error by failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident. He considered the evidence for and against the appellant’s theory and determined that he had not proven, on the balance of probabilities, the essential fact that black ice was present on the highway, and therefore could not prove causation. The trial judge was under no obligation to compare the relative probabilities of the theories, and his conclusion would not have differed had he done so.
The Court does a good job in discussing the burden of proof in personal injury tort claims in BC. This case is a strong illustration of the fact that Plaintiff’s must prove, on a balance of probabilities, that someone else is at fault for their injureis to succeed in a tort claim in BC.
This case is certainly worth reading for anyone advancing a claim against the Ministry of Highways in BC alleging that they or their contractors failed to safely maintian the roads under their watch.

Court "Costs" and Your ICBC Injury Claim

Reasons for judgment were released by the BC Supreme Court yesterday awarding a Plaintiff in a BC personal injury claim “costs” despite the fact that the Plaintiff’s award was within the small claims court jurisdiction.
This case gave me a good opportunity to write a little bit about the “costs’ consequences of bringing ICBC claims to trial and I intend to make this the first of several blog entries on this topic.
If you make an ICBC claim in BC Supreme Court and win (winning meaning you obtain a judgment in your favour greater than an ICBC formal settlement offer) you are generally entitled to ‘costs’ in addition to your award of damages.
For example, if a plaintiff with soft tissue injuries brings an ICBC claim to trial and is awarded $30,000 and ICBC’s formal settlement offer was $10,000, the Plaintiff would be entitled to “Costs” in addition to the $30,000 (barring any unusual developments at trial).
The purpose of awarding the winner Costs is to compensate them for having to go through the formal court process to get what is fair. This recognzes the fact that there are legal fees involved in bringing most ICBC claims to trial and one of the purposes of Costs is to off-set these to an extent.
Costs cover 2 different items, the first being disbursements (meaning the actual out of pocket costs of preparing a lawsuit for trial such as court filing fees and doctor’s fees in preparing medical reports) and the second being Tarriff costs – meaning compensation for many of the acutal steps in bringing a lawsuit in BC Supreme Court.
The Costs consequences after a BC Supreme Court Trial could easily be in the tens of thousands of dollars and this is often the case in many ICBC claims.
Costs are discussed in Rule 57 of the BC Supreme Court Rules and this rule is worth reviewing for anyone bringing an ICBC claim to trial in the BC Supreme Court. The winner does not always get their costs, however. One of the situations when a winner may not get their costs is when they are awarded an amount of money that was in the small claims court jurisdiction ($25,000 or less).
Rule 57(10) states that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.”
As a result of this sub-rule, people who bring an ICBC claim to trial in BC Supreme Court and are awarded less than $25,000, may be disentitled to their Tariff Costs unless they can show ‘sufficient reason for bringing the proceeding in the Supreme Court.”
In this weeks judgement the court agreed that despite the fact that the Plaintiff was awarded $12,290 in damages (an award well within the small claims court jurisdiction), the Plaintiff did have sufficient reason to bring the proceedings in Supreme Court.
In reaching this decision the court referred to a leading BC Court of Appeal Case where it was held that “a Plaintiff does not have an on-going obligation to assess the quantum (value) of a claim and that the point in time for a consideration of whether a plaintiff had a sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.
The lawyer for the Plaintiff argued that when the lawsuit was started they were not in a position to finalize their valuation of this claim becase they did nothave a final medical report commenting on the plaintiff’s injuries. Also that since the Defendant took an LVI (low velocity impact) position it was important to sue in Supreme Court to have an examination for discovery of the Defendant (a procedure not available in small claims court).
For those and other reasons the court agreed and awarded the Plaintiff her Tariff Costs.
Do you have questions about an ICBC Claim, or BC Court Costs that you wish to discuss with an ICBC claims lawyer? If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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