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
Tags: Chronic Pain, Loss of Income, Multiple Injuries, Pain and Suffering, welfare payments deducted
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 »
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
Tags: Car Accident Claim, Car accident lawyer, ICBC, ICBC Injury claim, ICBC Lawyers, Legal Causation, Loss of Income, Neck Pain, Pain and Suffering, Personal Injury, Personal Injury lawyer, Prior Condition
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 »
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 »
Tags: ICBC Injury claim, Legal Causation, Multiple Injuries, Personal Injury, Prior Condition, Psoriasis
Posted in Back Pain, Brain Injury, ICBC Car Accident, Limb Injury, Neck Pain, Soft Tissue Injury, Traumatic Brain Injury | No Comments »
November 6th, 2011
The claimant was injured in a car crash in Roberts Creek on the Sunshine Coast near Gibsons, British Columbia (Milliken v. Rowe, 2011 BCSC 1458). While the injury claimant was turning left at an intersection the other driver attempted to pass on the left striking the driver’s side of the claimant’s car.
The personal injury claimant was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort and effects of those injuries were mostly resolved within about two years. However the claimant suffered from right shoulder pain that did not resolve for over four years. The medical treatment for the the pain and suffering concerning her right shoulder would be invasive surgery. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.
In awarding $85,000.00 for pain and suffering the judge set out a list of items to consider when awarding compensation under this heading: Read the rest of this entry »
Tags: Accident Insurance Claim, Car Accident Claim, ICBC Injury claim, Legal Causation, Loss of Income, Neck Pain, Pain and Suffering, Personal Injury, Soft tissue injury, Whiplash Claims
Posted in Back Pain, How Much Money Will I Get?, ICBC Car Accident, Insurance Claim in British Columbia, Limb Injury, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | 1 Comment »
September 13th, 2011
This is an ICBC car crash injury costs case which happened at the intersection of 64th Avenue and 152nd Street in Surrey, BC(Gatzke v. Sidhu, 2011 BCSC 1214). It was dark and raining. The injury claimant was westbound on 64th Avenue and her evidence was that she was planning to drive further along 64th and eventually to turn right and proceed north up 144th Street. The judge however found that as the claimant approached the intersection, having already moved into the right-hand lane, the claimant’s right turn signal was on and it appeared she planned to turn right. The other driver relied on the claimants movements and turned left causing the accident.
In Oral Reasons for Judgment indexed at 2011 BCSC 988, the injury claimant was found the 70% at fault for the car crash and was awarded only 30% of her losses which were assessed at $31,500, plus physiotherapy user fees. It appears that the total compensation payable to the injury claimant amounted to something less than $10,000.
However, the insurance Corporation of British Columbia, ICBC, had made an offer to settle prior to trial, in the form required by Rule 9-1, and therefore sought payment in respect of steps taken after delivery of the offer. The offer was in the amount of $50,000.
In making an award for costs the Judge found,
“[11] The evidence, over all, was such that there was a very real possibility of the plaintiff only obtaining a modest damages award.
[12] On behalf of the plaintiff, it is said that acceptance of the offer would have left the plaintiff in dire financial circumstances. The offer, however, would have provided the plaintiff with a substantial sum of money and payment of all of her costs to the date that the offer was made.
[13] The offer was very generous, and ought to have been accepted…
[18] This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants. There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs. Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio. Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff. That amount is to be set off against the plaintiff’s award of damages.”
Posted by Mr. Renn A. Holness
Tags: Back Pain, Car Acccident Settlement, ICBC, ICBC Injury claim, Legal Causation, Neck Pain, New Civil Court Rules, Prior Condition, Whiplash Claims
Posted in Back Pain, How Much Money Will I Get?, ICBC Car Accident, ICBC Insurance Claims, ICBC Motorcycle Accident, ICBC Settlements, Limb Injury, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury | 1 Comment »
September 2nd, 2011
Since the decision of the BC Court of Appeal in Bradley v. Groves, 2010 BCCA 361, leave to appeal to S.C.C. refused, 2011 CarswellBC 890, it has been much easier for the court to make decisions involving multiple car accidents. In this personal injury case the injury claimant suffered injuries in four car accidents and claims against ICBC for pain and suffering, loss of income and loss of homemaking capacity. As the judge rightly pointed out,
“[68] The defendant ICBC agrees the appropriate approach to the assessment of damages in this case is that set out by our Court of Appeal in Bradley v. Groves, 2010 BCCA 361, leave to appeal to S.C.C. refused, 2011 CarswellBC 890. The defendant ICBC agrees the injuries following the first accident are indivisible from those sustained in the other accidents: that is, it is appropriate to assess damages globally, not apportion them between the various accidents.
[69] While there are five named defendants other than ICBC, the damages alleged result from motor vehicle accidents and will be assessed globally. I will therefore refer to ICBC as the defendant in this case.”
The third accident was a hit and run and ICBC was denying this claim and alleging that the injury claimant failed to make efforts to find the other driver and owner. In denying this defence the court stated, Read the rest of this entry »
Tags: Car Accident Claim, Chronic Pain, Hit and Run, ICBC, ICBC Injury claim, Joint and Several Liability, Legal Causation, Loss of Income, Pain and Suffering, Personal Injury, Thoracic Outlet Syndrome
Posted in ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia, Limb Injury, Motor Vehicle Accidents, Soft Tissue Injury | No Comments »
August 3rd, 2011
Brain Injury from Truck Accident in BC
In this highway truck accident injury claim (Harrington v. Sangha, 2011 BCSC 1035) the at fault driver lost control of a tractor trailer he was driving north on Highway 97 at an “S” turn in the highway, near Sales Road, about 20 km south of Quesnel. He felt his truck slide across the road as the trailer swung around the tractor. As this occurred another truck driver was approaching the same location driving a tractor trailer south, toward Williams Lake. When he saw the truck sliding sideways across the road he intentionally drove his truck off the west side of the road into a ditch and snowbank and the vehicles missed each other narrowly.
At that exact moment the injury claimant was approaching the scene from the south, driving toward Quesnel. The second trailer swung across the road into her line of travel and hit the front of her car, crushing the front and roof of the vehicle and causing her severe personal injuries.
The claimant suffered an injury to her left brachial plexus and is left with very little movement of the left shoulder and is unable to lift her left arm at the shoulder. She also suffered a traumatic brain injury that affects her cognition. She is irritable and disinhibited. Her memory and concentration are poor. She suffers chronic pain, for which she requires significant medication. At the time of the trial the injury claimant was totally unemployable.
The truck driver that lost control admitted his liability for the accident. The claimant herself led no evidence of the negligence of the other drivers but relied upon the allegations made by the at fault driver. He said the accident was contributed to by the negligence of the other truck in failing to drive with due care and attention, or the negligence of the company responsible for maintenance of the road at the location of the accident or the Province of British Columbia, the party with the statutory obligation to maintain the highway.
the claims against the Province and other driver were dissmissed and the claimant was not found to be contributorily negligent for the accident. As the the trial judge stated, Read the rest of this entry »
Tags: Brain Injury, Car Accident Claim, Chronic Pain, ICBC Injury claim, imminent peril, Loss of Income, Multiple Injuries, Pain and Suffering
Posted in Brain Injury, How Much Money Will I Get?, ICBC Truck Accident, Insurance Claim in British Columbia, Limb Injury, Motor Vehicle Accidents, Traumatic Brain Injury | 1 Comment »
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 »
Tags: Negligence, occupier liability, Personal Injury, Slip and Fall
Posted in Head Injury, Limb Injury, Slip and Fall | No Comments »
May 13th, 2011
Medical Malpractice Costs
In this Vancouver medical malpractice lawsuit (Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC 616 ) the injury claimant settled the day before a 10 day trial for some $200,000 plus costs and disbursements.
The claimant fell while skiing at Whistler, British Columbia, fractured her leg and was taken to a clinic in Whistler. She was discharged from the clinic and sent to VGH where she had surgery the next day. The day following the surgery the claimant complained of pain in the leg that she had fractured and which was subsequently operated on. That complaint was noted in her chart but inadequate follow-up was done. The Claimant went on to develop a compartment syndrome which then required further surgery to remove dead tissue for her leg.
As a result of the compartment syndrome and resulting surgery the claimant suffered a permanent partial disability in the form of a dropped foot and a left big toe drop. She also had scarring and unsightliness in her left leg. the defendants made a partial admission of fault before finally settling the case.
This medical malpractice lawsuit was based on the claim that had adequate care been taken she would not have developed compartment syndrome, or it could have been diagnosed and treated sooner, and the further surgery would not likely have been necessary.
In this assessment of costs Registrar Sainty stated, “In my view, in deciding the proper number of units to award in respect of each tariff item, I must compare this case with all of the other cases that come before the court and decide where it fits in the spectrum of them. Was it a simple, straightforward (i.e. “run of the mill”) case; or was it litigation involving numerous parties, extensive legal issues, numerous experts and involving large sums of money?”
In awarding disbursements, the expenses of presenting the case, the Registrar relied on her own experience in matters of a like nature when the affidavit evidence was lacking. The Registrar also commented on the principle of proportionality our our Civil Rules stating: Read the rest of this entry »
Tags: At Fault, Costs, disbursements, Medical Examination, Negligence, New Civil Court Rules, Proportionality
Posted in Limb Injury, Malpractice | No Comments »
