$800,000 for serious whiplash injury.

On August 28, 2015, the BC Supreme Court awarded nearly $800,000 in damages to a a plaintiff who suffered a serious whiplash injury. In Kanters v Galasinao, 2015 BCSC 1532, the plaintiff Kanters suffered a whiplash injury to her neck following a 2007 motor vehicle accident. Despite having treatment with several chiropractors, massage therapists, physiotherapists, acupuncturists and seeing numerous specialists, the pain persisted. The plaintiff attended an active rehabilitation program and was enrolled in a pain clinic where she was administered nerve blocks. At the time of trial in 2014, the...

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“Low Velocity Impact” evidence found unhelpful.

On August 12, 2015, the BC Supreme Court considered ICBC’s favourite defence, the “low velocity impact”. In Pitcher v. Brown, 2015 BCSC 1415, the plaintiff was involved in a 2004 collision and sued for damages. The impact was a modest one. The Court rejected much of the plaintiff’s claim following credibility/reliability concerns in her testimony. The Court was equally dismissive of the defence strategy of calling engineering evidence to discuss the modest forces of the collision. The Court concluded, as have many previous judgments, that demonstrating forces are modest...

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Worsening prognosis not enough to allow late DME.

On August 7, 2015, a master of the BC Supreme Court ruled that a plaintiff’s failure to recover from injuries is not enough for a defendant to secure a late defence medical exam. In Dzumhur v. Davoody, 2015 BCSC 1656, the plaintiff was injured in a a collision and sued for damages. In the course of the lawsuit the plaintiff served an expert report opining that the plaintiff ought to recover provided the injuries are responsive to recommended treatments. The defendant did not obtain a defence medical report and as the deadline approached for exchanging expert evidence the plaintiff served an...

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Simple assertion of contemplated litigation doesn’t cut it.

On August 6, 2015, the BC Supreme Court effectively dismantled an ICBC claim for litigation privilege in Buettner v. Gatto. The plaintiff in that case was injured in a collision and advanced a claim for damages.  The plaintiff retained counsel.  Liability was initially admitted and then denied by ICBC.  The plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once the plaintiff retained counsel. The Court rejected this finding this position was based on little more than a bare...

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$67,500 for chronic soft tissue injuries and depression.

In Dhanji v. Holland, 2015 BCSC 1351, the plaintiff pedestrian was struck in a marked cross walk by a vehicle driven by the defendant. The defendant admitted fault for the collision. The plaintiff suffered a variety of soft tissue injuries, some of which were chronic in nature and developed depression secondary to this. In assessing non-pecuniary damages at $67,500 (a figure which was arrived at following a 10% deduction in damages for the plaintiff’s failure to mitigate damages by refusing to attend recommended counselling) Mr. Justice Pearlman provided the following reasons: [108] The...

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Bad faith claim leads to broad disclosure obligations.

Shirley Wade suffered injuries as a result of a motor vehicle accident in 2005. In 2008, her insurer, the  Wawanesa Mutual Insurance Company, stopped paying her disability benefits. Wade started  a lawsuit for breach of contract and bad faith against Wawanesa. During the discovery of Wawanesa’s representative on the bad faith claim, counsel for Wawanesa refused four requests for information, as follows: 1. During the 5 years before Wawanesa terminated Wade’s benefits, provide the number of policy holders who received income replacement benefits like Wade, provide the average length of time...

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