Facebook Photos In Personal Injury Lawsuit Ordered Produced Despite Privacy Concerns

May 1st, 2012

Personal injury claimants in British Columbia should be aware of how the Courts deal with photos and videos kept at their Facebook accounts. As a personal injury lawyer in Vancouver since 1995 I have had to address privacy concerns for my personal injury clients in almost every case. With the evolution of social media, insurance companies know more than ever about injury claimant’s personal life and will often get photos and even videos of the claimant before they have a chance to change their privacy settings.

There are currently very few court cases dealing with Facebook in the context of personal injury claims in British Columbia. I did recently review a case in which the court refused to order disclosure of a claimants Facebook account information. However, in the case Fric v. Gershman, 2012 BCSC 614, the Court came to the opposite conclusion.

In the Fric case the litigant was claiming for damages resulting from injuries suffered in a motor vehicle accident in British Columbia.  At the time of the accident, the claimant was a first year law student at the University of Victoria.  The claimant’s  vehicle was rear-ended which caused her injuries including chronic severe headaches, injury and pain to the upper back, and neck pain. After the accident, despite her injury, the claimant engaged in various activities including trips to Thailand, Fiji, Australia, Montana, Florida, California, Seattle, Portland, and Cuba.

The claimant had some 890 Facebook “friends” who did have access to the private content of the Facebook profile. The Facebook network was used by the claimant for both personal and professional interactions. Her Facebook profile stored 759 digital photographs and one video and the claimant did not disclose the precise nature or subject matter of the Facebook photographs or video. In addition, the claimant was in possession of approximately 12,000 photographs. It was not clear on the evidence whether those photographs were stored electronically or in an old-fashioned album.

Despite her injury the claimant continued to engage in sports and other physical activities since the accident, including hiking, scuba diving and wakeboarding albeit with some pain or discomfort.

After considering many case authorities, the Court concluded that some of the claimant’s photographs, including those held on the private Facebook profile, must be disclosed. In making the order Master Bouck stated, Read the rest of this entry »

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Posted in Back Pain, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No Comments »

Fast Track Personal Injury Claimant Awarded over $100,000

April 18th, 2012

In this Fast Track car accident injury case (Bissonnette v. Horn, 2012 BCSC 518) the injury claimant was a passenger in a vehicle driving southbound on 203rd Street, near Michaud Crescent, in Langley, B.C.  Another vehicle, also traveling southbound on 203rd Street, cut off the claimant  vehicle causing it to lose control, which then came in contact with a utility pole.

The main issues at trial were the extent of the claimant’s pain, what injuries were caused by the accident, and the proper measure of her compensation. ICBC argued that the complaints of left hip pain did not arise until years after the car accident and were not caused by the accident.  ICBC relied on the evidence of  Dr. Grypma.

The court accepted the injury claim despite the defence awarding $109,500 in damages consisting of the following:

a)    Pain and suffering  of $40,000;

b)    $37,500 for past lost income;

c)    $30,000 for lost future earning capacity;

d)    $500 for out of pocket expenses, and

e)    $1,500 for the cost of future care.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness

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Posted in ICBC Car Accident, ICBC Insurance Claims, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | 1 Comment »

Vancouver Car Accident injury Award Despite Intervening Snow Shovelling Injury

April 11th, 2012

In this Vancouver filed car accident injury claim(Sandhar v. Rolston,2012 BCSC 495) the Supreme Court of BC says that at fault driver’s are still responsible for injuries that continue after an intervening injury for which the claimant is at fault.

The claimant’s car was struck from behind by another motor vehicle  and her car was pushed into another vehicle stopped in front of her. Fault was admitted and the trial proceeded on the assessment of damages. Four year after the motor vehicle accident the claimant injured her shoulder while shovelling snow which resulted in surgery. The judge found that the snow shovelling activity did not reactivate or aggravate the previous injuries, but instead caused a new injury. As that judge stated, “ I conclude the injury from the snow shovelling is divisible. It was not caused by an exacerbation of the injuries from the car accident and cannot be blamed on the defendant.”

That does not mean compensation for the injuries from the car accident is cut off from the date the injury claimant shovelled snow. The judge rightly pointed out that if the car accident injuries continued to have their effects after the shovelling injury, the at fault driver remains liable to compensate the injury claimant for those effects. See Dudek v. Li, 2000 BCCA 321.

The Court awarded the injury claimant $60,000 for pain and suffering.

Posted by Personal Injury LawyerMr. Renn A. Holness

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Posted in Back Pain, How Much Money Will I Get?, ICBC Car Accident, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury | No Comments »

Personal injury Claimant has Welfare Payments Deducted from Car Accident Award

April 2nd, 2012

This car accident injury claimant was awarded over $1.6 million for personal injury after deduction of welfare payments(Campbell v. Swetland, 2012 BCSC 423). This  personal injury claim arose from a motorcycle and automobile collision that occurred when the claimant was riding her red 2010 Triumph motorcycle northbound on Highway 6 when the south bound defendant, driving a white 1998 Subaru Forester, turned left across her path.  The collision occurred at the intersection of Highway 6 and Storbo Road about 7 kilometres north of Crescent Valley near Nelson, British Columbia.

 The judge found that the other driver was at fault.

The claimant suffered severe, debilitating and life threatening injuries. With respect to the deduction of past and future welfare payments the court pointed out,

[69] The Supreme Court of Canada affirmed the deductibility of welfare payments from income loss awards in M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, holding:

25. It is argued that social assistance is not a form of income replacement, because it is given on the basis of need for the purpose of relieving poverty.

26. In my view, this argument is mistaken. It is true that social assistance benefits are intended to relieve poverty, and that need is the relevant criterion. However, as Smith J.A. pointed out in his dissenting judgment in the Court of Appeal in the case at bar, this does not mean that they are not intended as wage replacement. On the contrary, it suggests that they are intended to replace that part of employment income that would normally be spent on meeting basic needs (para. 162). Most people who require welfare require it because they lack sufficient income to meet their basic needs, and the normal source of sufficient income is employment of one sort or another. Social assistance therefore replace income that most people would have obtained through employment. It does not purport to replace all of the income they would have obtained if they had a job. It only replaces enough to satisfy basic needs. But it is no less “wage replacement”, simply because it only replaces a portion of the income a person might otherwise have had.

Posted by personal injury lawyer Mr. Renn A. Holness

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Posted in Brain Injury, Head Injury, How Much Money Will I Get?, ICBC Car Accident, ICBC Insurance Claims, ICBC Motorcycle Accident, Limb Injury, Motor Vehicle Accidents, Soft Tissue Injury, Traumatic Brain Injury | No Comments »

Car Accident Injury Claimant on Maternity Leave at Trial Awarded over $120,000.00

March 26th, 2012

The injury claimant was injured when the car she was driving was rear-ended by another vehicle(Fell v. Morton,2012 BCSC 428). Fault for the accident was admitted but causation and quantum remained in dispute likely by the insurer ICBC , given that the car accident occurred in British Columbia. The questions were whether the back and neck pain and migraine headaches were pre-existing problems that were just aggravated shortly by the accident; and whether the claimant suffered loss of earning capacity due to her injuries.

At the time of the car accident injury the claimant was self-employed in the film industry as a first aid service provider which involved being on location during filming to provide first aid and to provide snacks and light meals for actors, directors, and the film crew. Following the accident, she continued to work  until taking her maternity leave. Note that when you continue working after a car accident you are not typically entitled to ICBC disability benefits.

In this oral decision the judge in awarding over $100,000 commented,

In summary, the injuries from the accident have affected all areas of [the injury claimant's] Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre‑existing condition and proclivity to develop migraine headaches.(para 39)

The total compensation awarded to this injury claimant was as follows:

  Pain and suffering: $65,000  
  Out of pocket expenses: $4,175  
  Cost of future care: $2,500  
  Past wage loss: $0  
  Loss of earning capacity: $50,000  
  TOTAL: $121,675

Check out my other posts about pregnant injury claimants. Posted by car accident injury lawyer Mr. Renn A. Holness

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Posted in Back Pain, Car Accident Lawyer, How Much Money Will I Get?, ICBC Car Accident, Limb Injury, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No Comments »

Personal Injury Award Conflates Legal Causation with Assessment of Damages Says Court Of Appeal

March 12th, 2012

This car accident injury case was sent back for a new trial because the Court of Appeal found that the  trial judge was wrong in reducing the injury claimants award for failure to following medical advice (Wahl v. Sidhu, 2012 BCCA 111). I reviewed the original decision in which the injury claimant was travelling  on 72nd Avenue, in Surrey, B.C. and my article focused on the judges reluctance to compensate for personal injury lawyer funded treatment. Clearly the trial decision was wrong and cannot be relied upon.

The BC Court of Appeal rightly pointed out that the judge’s reasons confuse the issues of causation and mitigation. As stated in Yoshikawa, “any question of mitigation, or failure to mitigate, arises only after causation has been established” (para. 12, subparagraph7). Read the rest of this entry »

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Posted in Back Pain, British Columbia Lawyers, Car Accident Lawyer, ICBC Car Accident, ICBC Insurance Claims, ICBC Truck Accident, Motor Vehicle Accidents, Personal Injury Lawyers BC, Soft Tissue Injury, Vancouver Personal Injury Lawyer, Whiplash Claims | 1 Comment »

Car Accident Fibromyalgia Award of $125,000.00 for Pain and Suffering upheld on Appeal

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 »

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Severe Brain Injured Car Accident Claimant has $2.9 Million Award Reduced by $350,000 on Appeal

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 »

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Car Accident Injury Claimant’s Psoriasis and Psoriatic Arthritis Aggravated by the trauma and stress

January 26th, 2012

The injury claimant was a 32-year-old plumbing apprentice when he was seriously injured  in a head-on collision(Cassells v. Ladolcetta,2012 BCCA 27). The claimant was driving his car in the westbound centre lane of Canada Way, one of Burnaby’s major east-west connectors.  As he approached Canada Way’s uncontrolled intersection with Sprott Avenue, the other driver, intending to turn slightly left and head straight onto Sprott, drove her pickup truck into the claimant’s car. After  three weeks of trial and 19 witnesses plus 17 expert witnesses, the court found the other driver and owner solely responsible for the accident and made a substantial award against them. 

He suffered extensive soft tissue injury to his neck, thoracic and lumbar spine, right shoulder, elbow, and right knee, as well as a compression fracture in his lumbar spine, all which left him with residual symptoms that it was said he would continue to experience to some degree.  In addition, he sustained a minor frontal lobe brain impact injury and he developed what the judge found to be a subclinical post traumatic stress disorder.

 His 77-page judgment is indexed as 2009 BCSC 1151. 

    The respondent had for some time suffered from, and been treated for, skin psoriasis.  He was found to have also manifested an early indication of psoriatic arthritis.  After the accident, in time the psoriasis became particularly bad and the psoriatic arthritis became fully developed to the point that the respondent was no longer able to do the physical work of a journeyman plumber for which he had apprenticed.  The primary issue at trial was whether, and if so the extent to which, the accident had served to aggravate the respondent’s pre-existing disease.

The judge described psoriasis and psoriatic arthritis as follows:

[15]      The evidence of the medical experts explained that psoriasis is what is thought to be an auto-immune mediated skin disease that can fall anywhere on a graph between a minor nuisance to grave condition.  It is not curable, but in most cases treatment can control it, with varying degrees of success.  Most people with this condition can work and live their lives mostly unimpeded, but in some cases it can be a challenging, even debilitating, and worse, disease to live with.  Dermatologists usually treat psoriasis.

[16]      Psoriatic arthritis is a form of arthritis closely connected to psoriasis.  It is also thought to be auto-immune mediated.  Not all people with psoriasis develop psoriatic arthritis, which typically presents itself in some form within 10 years, usually in peripheral joints.  Rheumatologists treat psoriatic arthritis, so psoriatic arthritis patients consult with two specialists, one to treat the skin, the other the joints.

The Court of Appeal upheld the finding that the claimant’s Psoriasis and Psoriatic Arthritis was aggravated by the trauma and stress for the car accident stating: Read the rest of this entry »

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Posted in Back Pain, Brain Injury, ICBC Car Accident, Limb Injury, Neck Pain, Soft Tissue Injury, Traumatic Brain Injury | No Comments »

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