February 29th, 2012
In many ICBC personal injury cases the Insurance Corporation of British Columbia will instruct their lawyers to send claimants for medical assessments. However, in this medical examination denied case (Turnbull v. Yarmohammadi, 2 BCSC 287) the court refused to order the claimant to attend a defence medical examination with a neurologist. Master Baker pointed out,
[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.
[19] Again, nothing in this precludes the defence from delivering a responsive medical report. It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.
For a further discussion about the 84 day expert deadline check out my article about top lawyers serving expert reports. Also take a read of my review of Wright v. Brauer ,2010 BCSC 1282. Posted by Personal Injury Lawyer Mr. Renn A. Holness
Tags: Accident Insurance Claim, Car Accident Claim, ICBC Medical Examination, Independent Medical Examination, Medical Examination, New Civil Court Rules
Posted in ICBC Car Accident, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »
February 22nd, 2012
The Insurance Corporation of British Columbia controls a fund for personal injury victims injured by at fault hit and run drivers. Without this unique coverage, a person injured by an unknown driver would have no way of getting compensation for the losses due to the negligence of the other driver.
There are strict reporting requirements under the law for a hit and run car accidents and claimants should notify ICBC in writing right away and in any event within 6 months after the accident that caused the bodily injury, death or property damage. The Insurance Vehicle Act in BC establishes the legal basis for a hit and run claim as follows: Read the rest of this entry »
Tags: Accident Insurance Claim, Hit and Run, ICBC, ICBC Injury claim, Insurance Claim, Personal Injury
Posted in ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia | No Comments »
February 21st, 2012
In this infant personal injury claim a six year old boy riding his bicycle (McIlvenna v. Viebig, 2012 BCSC 218) was injured in a car crash with a motor vehicle. The car accident occurred near an uncontrolled T-intersection where a road that runs along the west side of the Tsawwassen Town Centre Mall intersects with Library Road in Delta, British Columbia. The young injury claimant was making a left turn on his bicycle and the trial was only concerned with the question of who was at fault for the accident.
This was the second trial of this personal injury case, a new trial having been ordered by the Court of Appeal in McIlvenna (Litigation guardian of) v. Viebig, 2008 BCCA 105.
The court concluded that , notwithstanding the obligation to use greater care because of the presence of children, the young injury claimant had not established that the other driver did not exercise reasonable care. The evidence established the contrary, that the accident occurred when the claimant cut the corner into the car’s oncoming lane, at a time when the car was driving with extreme care.
Interestingly, the judge went on to address whether, if his decision was wrong, the cyclist was contributorily negligent. Despite this boys tenders years the judge would have apportioned fault to the driver at 60% and the young cyclist at 40%. In making this find the judge stated, Read the rest of this entry »
Tags: At Fault, ICBC Injury claim, infant claim, Legal advice, Negligence
Posted in #1 Vancouver Bike Lane Experiences, Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, Motor Vehicle Accidents | No Comments »
February 14th, 2012
This was an application for production of ICBC documents in a car accident injury case(Bako v. Gray,2012 BCSC 204). The injury claimant applied for production of various documents which had been listed by the defendant in Part 4 of his List of Documents subject to a claim of litigation privilege.
The injury claimant alleged that the ICBC documents were created during the investigative stage and not for the dominant purpose of litigation. She pointed out the lack of any evidence from any adjuster who handled the files and the inconsistent and contradictory evidence of the adjuster who claimed to have assumed conduct of the files on that date. In ordering the file be produced the court made it clear,
Read the rest of this entry »
Tags: Car Accident Claim, Document Discovery, ICBC, ICBC adjuster notes, Investigation stage, privilege
Posted in ICBC Car Accident, Legal Advice, Motor Vehicle Accidents | No Comments »
February 9th, 2012
This appeal concerned the amount awarded as a result of two motor vehicle accidents that occurred in quick succession(Morlan v. Barrett, 2012 BCCA 66) . The first accident was a head-on collision. After that collision, the claimant got out of her vehicle to speak with the other driver. A few minutes later, she returned to her vehicle to obtain her registration and insurance papers. While the injury claimant was seated in her vehicle it was rear-ended by another vehicle.
The accidents were heard together and the court awarded her a total of $610,453.00 for pain and suffering, loss of future income earning capacity, cost of future care, and out of pocket expenses. The appellants contended that the trial judge was in error these awards should be reduced.
The Court of Appeal allowed the appeal to the extent of reducing the award for loss of future income earning capacity by $150,000.00 to $275,000.00, and the cost of future care award by approximately $10,000.00 to $42,953.00. However, the award of $125,000.00 for pain and suffering was not reduced on appeal.
The court upheld the award for pain of suffering finding that it cannot, having regard to recent awards in similar cases, be said to be so excessive as to warrant appellate intervention.
The Court of Appeal however felt that the trial judge overlooked some negative contingencies which should have reduced the awards for loss of future income and costs of care.
They accepted the appellants’ submission that the trial judge erred in finding that there was a real and substantial possibility that but for the accidents the claimant would have been promoted to a director’s position. As Judge Frankel stated, “I accordingly agree with the appellants that the judge’s findings do not take the matter above the level of speculation and that, therefore, there is no basis for an award for the positive contingency of promotion.”
In reducing the claimants award for cost of future care by $10,000.00 the Court of Appeal made no detailed analysis and simply stated, Read the rest of this entry »
Tags: Car Accident Claim, Chronic Pain, Fibromyalgia, Legal Causation, Pain and Suffering, Personal Injury
Posted in How Much Money Will I Get?, ICBC Car Accident, Motor Vehicle Accidents, Soft Tissue Injury | No Comments »
February 6th, 2012
The injury claimant was seriously injured in a motor vehicle accident when a tractor-trailer struck and crushed her Volvo inside the Massey Tunnel near Delta, B.C. She suffered extensive injuries including a severe brain injury(O’Connell v. Yung,2012 BCCA 57). The trial judge awarded more than $2.9 million in this personal injury case and ICBC, as the insurer for the defendant, appealled the decision.
In reducing the award by $350,000 the Court of Appeal applied an arbitrary 20% discount of the future losses resulting from the car accident injury stating,
[68] In my opinion, the trial judge erred in principle in applying Kroeker and concluding that future care costs are payable whether or not they may be incurred in the future. As the authorities I have referred to above make plain, the assessment of future care costs entails a consideration of the losses that may reasonably be expected to be required. The legal principle enunciated in Kroeker and considered in McTavish clearly does not translate to future care costs…
Read the rest of this entry »
Tags: Brain Injury, cost of future care, loss of homemaking capacity
Posted in Brain Injury, Head Injury, ICBC Car Accident, ICBC Insurance Claims, Traumatic Brain Injury | No Comments »
February 2nd, 2012
The claimant was employed as a store manager at the 28th & Main liquor store in Vancouver operated by the Liquor Distribution Branch (the “LDB”) and had worked for LDB for over 30 years. Another employee made a written complaint about the claimant and the LDB terminated the claimant’s employment without notice. The claimant won her lawsuit that she was dismissed without cause, and was entitled to damages for the defendant’s breach of contract for failure to provide reasonable notice of dismissal and in addition was awarded aggravated and punitive damages arising from the manner of her dismissal(Vernon v. British Columbia (Liquor Distribution Branch),2012 BCSC 133).Aggravated damages are generally compensatory in nature. In this case the claimant was a long serving faithful employee. The manner of her termination was devastating and caused her serious harm. The court awarded $35,000 in aggravated damages.
Unlike aggravated damages punitive damages are directed towards punishment. The leading authority remains Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 36(“Whiten”). As the judge stated, Read the rest of this entry »
Tags: aggravated damages, punitive damages
Posted in How Much Money Will I Get?, Insurance Claim in British Columbia | No Comments »
