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Brain Injury Claimant Awarded $5.9 Million But only Gets $1 Million due to Lack of Insurance and Settlement Agreement


I have been a personal injury lawyer in Vancouver since 1995 representing injury claimants and can say that this brain injury falling case (Danicek v. Alexander Holburn Beaudin & Lang, 2011 BCSC 65) stands out for me as an example of the liability insurance system gone wrong.  The injury claimant, a young lawyer, suffered serious and permanent injuries when a drunk senior co-worker fell onto to her on a dance floor causing brain injury.  This occurred after a law firm function but was unconnected to the law firm itself.  The judge  found that the co-worker was was at fault for her injury and awarded $5,913,783.54 (read my post on this dance floor brain injury). This decision was the second phase of the trial.
Even though the judge awarded $5.9 million the judge found that the co-worker was not covered by his law firm’s insurance.  Through his own third party liability coverage the co-worker was able to negotiate an out of court settlement of  $1,050,000.00 with the injury claimant.  So even though the court awarded her $5,913,783.54 she only ended up receiving $1,050,000.00. In refusing the additional $5 million insurance coverage the judge pointed out

   “I find that Mr. Poole’s actions were not in the scope of his employment. He and Ms. Danicek both attended a dinner paid for by their employer. There were some business reasons for Alexander Holburn to sponsor such events: they promote good will for the firm, and they were an opportunity for associates to become acquainted. The attendance at Bar None, however, has a far more tenuous connection with employment. Some of the persons who attended the dinner decided to go to the bar; some did not. Additionally, it cannot be said that the law firm sponsored this. I agree with the vice-chair of the Workers’ Compensation Appeal Tribunal that payment of one receipt for $17.50 does not mean that the employer sponsored the activity. Also see: Mumford at para. 10. The evidence does not support the suggestion that Alexander Holburn gained any residual benefit from the attendance of its employees at Bar None. As such, there was no coverage.

[88]         Finally, there is a question as to whether Mr. Poole’s liability arises out of negligence on his part at Rodney’s, and whether that negligence was within the scope of his employment. It is theoretically possible that Mr. Poole’s liability could arise from his actions at Rodney’s earlier in the evening. Any such negligence might arguably be within the scope of his employment. However, there is no evidence that Mr. Poole was grossly intoxicated at Rodney’s or otherwise. Nor can I find that he was demonstrably exercising poor judgment. Therefore, there is no reason to decide whether his actions at Rodney’s were within the scope of his employment…

[89]         If I am wrong in concluding that Mr. Poole’s acts were not within the scope of employment, I must go on to consider whether Ms. Danicek was injured while in the course of her employment pursuant to clause 2.a.1).

[90]         I adopt the reasoning of the Workers’ Compensation Appeal Tribunal quoted above at paras. 33-35, which concluded that Ms. Danicek’s injuries did not arise out of and in the course of her employment as that term is used in the Workers Compensation Act.”

Posted by Mr.Renn A. Holness
Issue: How unclear can contracts of insurance become until rendered incomprehensible?

Tags: At Fault, Negligence

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