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 »

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…

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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 »

Top Spinal Cord Personal Injury Lawyers Need to be Aware of Representation Agreements

January 4th, 2012

When a person  suffers a serious spinal cord injury due to a car accident it may become impossible for the claimant to physically sign over authority to trusted family members. The victim of personal injury may still be legally competent but simply cannot physically take care of their day to day living needs or take the necessary steps in their ICBC personal injury claim. In British Columbia personal injury lawyers can  help injury claimants and their families choose between Adult Guardianship and Legal Representation under the Representation Act.

A representation agreement can allow more than one person to assist. One representative can be appointed to help make decisions about routine management of financial affairs, and another can be appointed to obtain legal services and instruct a personal injury lawyer with respect to ICBC claims or other personal injury claims. There are strict limitations on who can be a representative and whether the representative can make decisions without unanimity. It’s best to hire a lawyer to draft the documents necessary for the representation agreement to be effective and valid.

The great thing about Representation Agreements is that they DO NOT deprive the injury claimant of the ability to make decisions about their ICBC personal injury case, if capable, despite a representative may have been authorized to make that same decision. The claimant maintains their legal right to make decisions and allows them to change the agreement whenever they choose. 

The following activities are considered “routine management of financial affairs”: Read the rest of this entry »

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Posted in #1 ICBC Injury Claims, #1 ICBC Personal Injury Lawyers, #1 Spinal Cord Injury Lawyer, Brain Injury, Head Injury, Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Motor Vehicle Accidents, Personal Injury Lawyers BC, Spinal Cord Injury, Traumatic Brain Injury | No Comments »

Injured Car Accident Passenger Settles for $900,000 and gets Low Interest Award on Costs

November 10th, 2011

The claimant was five years of age and was a back seat passenger in a car being  driven by his uncle. Their car was in the midst of making a left turn in the intersection of 49Th Avenue and Knight Street in the City of Vancouver when it was hit  by another car going southbound . This case involved issues of brain injury resulting from the car accident.

The personal injury case settled with ICBC for the sum of $900,000(Chandi v. Atwell, 2011 BCSC 1498) plus taxable costs and disbursements just one month before the trial. The injury claimant appeared at court to have his costs assessed.   The amount sought to be recovered  for his obligation to pay interest that were incurred on his behalf amounts to $25,668.92. The claimant’s personal injury law firm arranged to finance the required case expenses through a private lender who charged 12% interest compounded annually. In refusing to fully compensation the claimant for the costs of borrowing the court pointed out at paragraph 73, Read the rest of this entry »

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Posted in Brain Injury, How Much Money Will I Get?, ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia, Motor Vehicle Accidents, Traumatic Brain Injury | No Comments »

3 Million Dollar Personal Injury Award in Golf Club Wielding Brain Injury Case

November 7th, 2011

Brain Surgery needed after blow to head

A Maple Ridge man with no lawyer now owes over 3 million dollars after court finds that he intentionally hit the injury claimant in the head with a golf club resulting in a severe skull fracture and traumatic brain injury(Saether v. Irvine, 2011 BCSC 1497) . The  altercation occurred in front of a home in Maple Ridge, British Columbia.  

The claimant was travelling westbound on 117th Avenue and as he passed through an intersection at 209th Street, he  felt something strike their vehicle so he turned around. His passenger jumped out of the vehicle and started fighting with a man on the lawn of the defendant’s home. The claimant got out of his car and approached the fight when defendant, wielding a golf club with a two-handed grip, swung it at the claimant. The head of the club struck the right side of the claimant’s head and crushed his skull.  

The judge found that it was clear that this was an intentional act and not negligent and stated at para 68,” Based upon the analysis which I have just explained, I am satisfied that the matter at bar is most appropriately understood within the context of the intentional tort analysis. I do not find it necessary to examine the matter in the context of the negligence analysis. The striking of the blow was an intentional act, not an act of negligence  

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Posted in Brain Injury, British Columbia Lawyers, Head Injury, Hiring a Personal Injury Lawyer, Injury Attorneys, Insurance Claim in British Columbia, Personal Injury Lawyers BC, Traumatic Brain Injury, Vancouver Personal Injury Lawyer | No Comments »

Boy Wins Personal Injury Appeal After Falling out of a Truck

November 3rd, 2011

 

Boy falls out of back of truck-Seriously injured

The injury claimant was 12 years old when he fell out of the back of a open bed of the truck near Chase, B.C. (Vedan v. Stevens, 2011 BCCA 386). Several children were allowed to ride in the open bed of a truck, rather than in the cab where they would have had seats and seat belts. The sides of the bed of the truck were only 22 inches high and the driver told them to sit with their backs to the window of the truck and not to move.

The driver had his windows up and air conditioning on while talking with his passenger. He finally became aware of a problem when a child stood and started pounding on the rear window. He looked back and saw the injury claimant  lying in the middle of the road moving his limbs and moaning. The boy had been thrown from the back of the truck.

At the original personal injury trial on liability the trial judge found the boy 25% liable for his own injuries. The appeal of the liability decision was brought by his litigation guardian.

The injury claimant’s lawyer successfully argued  that the trial judge was wrong  by relying on the inference that he somehow contributed to the accident when there was no direct evidence to support that inference. As the court of Appeal went on to say in allowing the appeal starting at paragraph 13, Read the rest of this entry »

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Truck Accident Injury Claimant awarded over $1 Million for Traumatic Brain Injury

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 »

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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 »

Severely Brain Damaged Infant Loses Injury Claim Against Doctor

June 5th, 2011

Brain Injured Infant

In this unfortunate medical malpractice infant case (Ediger v. Johnston,2011 BCCA 253) the trial judge initially found that the surgeon had breached the standard of care and failed to obtain the injury claimant’s informed consent to the procedure, but the Court of Appeal disagreed and dismissed the claim.

The surgeon successfully appealed on the issue of causation claiming that he did nothing to cause the brain damage suffered during the delivery of the infant injury claimant.  Compression of the umbilical cord  caused damage to her central nervous system about 20 minutes before her birth. The effect of the cord compression was to cut off the exchange of blood and oxygen from the placenta to her brain and upon delivery she was non-responsive and severely brain damaged.  Her injuries are catastrophic and irreversible; they have significantly shortened her life expectancy.

The trial judge found that a mid-level forceps delivery was a high risk procedure and that, before attempting the procedure, surgeon should have advised the litigation guardian of its benefits and risks along with the benefits and risks of any alternative procedure, including a Caesarean section.

The Court of Appeal overturned the the finding of causation in a dramatic three judge panel stating: Read the rest of this entry »

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