April 2nd, 2013
As of April 1, 2013 HST no longer applies to legal fees and legal services in BC. In personal injury cases no income tax is payable on lawyer negotiated settlements for pain and suffering compensation with the Insurance Corporation of British Columbia, ICBC, and other insurance companies. The Provincial change back to the PST and GST changes will however keep sales and services taxes on legal fees at a total of 12%, with few exceptions.
According to the Provincial Sales Tax, PST, Bulletin of March 28, 2013, an injury claimant that hires a BC lawyer to represent them in an insurance dispute that relates to a motor vehicle accident in BC must pay the tax on legal services because they relate to a possible BC proceeding. This applies even if the matter is settled out of court.
Claimants and all BC government departments and Crown corporations, including ICBC, that were paying HST on purchases of taxable goods and services will have to pay GST. Businesses that already have a federal business number can use the old business number for the GST, but will still need a new PST number.
The change from the HST back to the PST/GST will not have any substantial impact on what the average personal injury litigant pays for sales and services taxes on legal services. Talk to your lawyer about the specifics of your case.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
November 19th, 2012
As a personal injury lawyer serving the Lower Mainland since 1995 I have successfully helped many slip and fall injuries claimants. If you or someone you know has just been injured in a business establishment, check out my short video about slip and fall injuries on business premises
Here are three important tips for people injured on business premises in British Columbia:
1. INCIDENT REPORT- Make sure that your injury is reported to staff members right away and an incident report is completed;
2. WITNESES- Obtain the name and contact information of any witnesses. Do not talk to the witness about the incident; and
3. WRITTEN NOTICE- Give the business written notice that you want copies of all surveillance videos.
Businesses that are occupiers under the Occupier Liability Act
owe a duty to take care that people will be reasonably safe in using the premises. This duty is limited as there are exclusions for contracting out. Often there is little hope of a viable claim if the claimant was trespassing or entering for the purpose of a recreational activity and the occupier received no payment other than a payment from a government agency or a non-profit recreational club or association.
Remember these type of slip and fall injuries have deadlines for filing with the court as well as deadlines to give notice of the claim. A personal injury lawyer at best should have a look at the case in the first thirty days.
Posted by Mr. Renn A. Holness, B.A. LL.B.
November 21st, 2011
In this slip and fall serious personal injury claim (Jack v. Tekavec,2011 BCCA 464) the injury claimant fell three stories after leaning against a rotted, poorly repaired balcony railing. The owner and manager of the apartment complex was found fully at fault in negligence as an occupier. The at fault owner and manager appealed the judgment awarding $322,000.00 in personal injury compensation against him under the Occupiers Liability Act, R.S.B.C. 1996, c. 337.
The owner says he did not receive a fair trial because the court did not give the unrepresented party an opportunity to re-serve a subpoena to a material witness with the appropriate conduct money. The owner had no lawyer at trial and the trial judge provided considerable assistance providing him with a “memorandum to self-represented litigants” summarizing procedures at trial. He also provided the owner with copies of those provisions of the Supreme Court Civil Rules, B.C. Reg. 168/2009, regarding subpoenas; specifically, Rule 12-5, which included Rule 12-5(35):
A person served with a subpoena is entitled to tender of the proper fees at the time of service.
The owner was encouraged on numerous occasions by the court to retain counsel. He chose not to heed that advice and went to court without a lawyer.
The Court of Appeal acknowledged the significance of a Notice to Admit that had been served on the owner. The owner did not respond in time so the facts were deemed admitted. The damaging facts admitted were: Read the rest of this entry »
June 20th, 2011
Personal Injury Chilliwack School Board
In this Psychiatric personal injury claim (Hussack v. Chilliwack School District No. 33, 2011 BCCA 258) the 13 year old injury claimant was hit in the face with a field hockey stick while playing the game at school. He suffered a concussion which developed into a serious psychiatric illness called somatoform disorder. This disorder has left him with significant difficulties which he believes are physical in origin, but in reality originate in this mental disorder.
The School Board blamed the claimant’s father for the development of the psychiatric disorder, the conduct which they say included: endless investigations; overprotection; failure to obtain counselling for his son; failure to allow his son to return to school and to exercise; failure to provide his son with prescribed medications; failure to stop providing his own prescription narcotics to his son, which caused the injury claimant to develop a drug dependency; failure to bring his son to medical appointments; and failure to follow the advice of medical practitioners.
The trial judge found the teacher negligent for failing to put the boy into progressive lessons and determined that the blow to the head was a factual cause for mental disorder. The trial judge awarded the following :
|Pain and suffering
|Past loss of income
|Future loss of income earning capacity
|Future care costs
The School Board in Chilliwack, BC appealed all the finding of the trial judge. In this decision the Court of Appeal of British Columbia upheld the finding of cause in fact and cause in law. The awards for past and future loss of income were nominally reduced by 25% to account for negative contingencies.
The Court of Appeal makes no new law regarding causation but rather seems to fully embrace this dichotomy between factual and legal cause in personal injury cases. More importantly this injury case sets out the law regarding the behaviour of parents being regarded as “intervening causes” and helps prevent insurance companies from blaming overzealous parents for the kids suffering a mental disorder as a result of personal injury. As the Court of Appeal stated, Read the rest of this entry »
June 8th, 2011
Slip and Fall Personal Injury
In this slip on ice personal injury case appeal (Foley v. Imperial Oil Limited,2011 BCCA 262) the injury claimant was injured at a car wash at an Esso service station in North Vancouver, British Columbia. the injury claimant slipped on a small patch of ice near the car wash and fell backwards hitting his head and suffering a serious dislocation of his right kneecap. There were no warning signs or cones in the area of the car wash exit to warn customers of the risk of ice.
The trial judge found that the car wash had breached their duty to take reasonable care in the circumstances to ensure that the injury claimant would be reasonably safe in using the car wash. The Court of Appeal upheld the decision making important comments about the evidentiary burden on occupiers such as gas stations and car washes. Read the rest of this entry »
April 28th, 2011
Slip and Fall Personal Injury
The Claimant was injured when she slipped and fell while shopping at Safeway (Charlie v. Canada Safeway Limited, 2011 BCCA 202) in Duncan, BC. She brought a lawsuit against Safeway claiming that it failed to fulfill its duty to keep the premises reasonably safe. This was an appeal of a decision of a Supreme Court Judge to the British Columbia Court of Appeal.
The claimant was shopping for groceries at Safeway on the date of the accident. As she approached one of the checkouts, she proceeded past a display of cut flowers, where she slipped and fell. In the course of falling she knocked over one or more of the buckets that held the flowers, so there was a considerable amount of water on the floor after she fell. There was, however, no direct evidence that there was water on the floor prior to the claimant’s fall.
The trial judge found that the claimant failed to establish that her fall was due to a hazardous condition of the premises. He also determined that the Safeway had taken reasonable care to see that the premises were safe.
The injury claimant appealed alleging that the trial judge was wrong in failing to find that her fall was caused by the condition of the premises, and also in finding that Safeway had taken reasonable care to ensure that the premises were reasonably safe. Read the rest of this entry »
April 12th, 2011
ICBC car accident claim- Win or lose
In this ICBC costs of personal injury case ( Danicek v. Li,2011 BCSC 444) the claimant was offered $500,000.00 to settle her car accident case with ICBC. She rejected the ICBC offer and went to court where the judge only awarded her a little over $10,000.00. ICBC applied to court to have their costs, a contribution toward their legal fee, paid by the unsuccessful personal injury claimant.
In British Columbia we have a set schedule that is used to compensate winning parties to a lawsuit for their legal fees. ICBC was overwhelmingly successful in the defence of this injury claim and were seeking double their costs, special and increased costs.
The judge recognized that this personal injury litigation had become complex and that ICBC deserved an increased amount for a contribution toward their legal fee.
This injury claimant was also seriously injured in a dance floor incident resulting in the claimant being awarded almost 6 million dollars. These cases were heard together and you can read the post about that brain injury claim. The court was of the view that, Read the rest of this entry »
February 23rd, 2011
This psychological injury car accident lawsuit ( Deros v. McCauley,2011 BCSC 195) was brought by a witness to a car accident. The accident occurred on Highway 97, north of Bear Lake, B.C. the claimant was part of a crew installing rumble strips on the highway. The injury claimant said that, as a result of witnessing the accident in which a vehicle struck a grinder unit being driven by his friend, he suffered emotional upset and post traumatic stress syndrome ( PTSD ). The claimants friend was not seriously injured in the motor vehicle accident.
The injury claimant said his prior emotional issues made him vulnerable to psychological injury, a classic thin skull doctrine argument. The court seems to have denied that argument outright not just on the evidence but on the law. As Judge Gerow stated at para 17,
“In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so.”
In effect the Judge appears not to apply the thin skull doctrine legal analysis to the facts of this case. As a personal injury lawyer making a psychological injury claim I succeeded in getting an award for a claimant in a car accident where the claimant was not even witness to the accident or injuries. Read the rest of this entry »
February 16th, 2011
This order for costs in a personal injury action follows the decision in Jack v. Tekavec, 2010 BCSC 1773, finding a landlord at fault for a faulty balcony railing causing serious injuries to the claimant. The trial judge awarded damages of $322,463.78. The claimant delivered an offer to settle the lawsuit to the landlord’s lawyer long before the trial in the amount of $300,000 plus assessable costs and disbursements.
The injury claimant’s positions was that the offer to settle ought reasonably to have been accepted when made, that at trial he beat the offer, and that the other circumstances militated in favour of an award of double costs. The landlord appears not to have paid attention to the lawsuit as he should, and as the judge pointed out, “ his response to offer a “six pack” at a trial management conference is indicative of that.”
The form of the offer was quite straightforward: Read the rest of this entry »