Retaining a Personal Injury Lawyer

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Prior to retaining a lawyer in a personal injury case, you would be wise to ask about how you will be expected to pay the lawyer. Usually, personal injury lawyers will charge on a contingency fee basis;  meaning the lawyer will charge a percentage of the amounts recovered in your case. Typical fees in BC are in the range of 25 % – 33%. Higher rates may be charged in some non-ICBC cases.

Contingency fee agreements are negotiated at the outset of the relationship between the lawyer and client. All contingency fee agreements must be in writing and signed by the client and the lawyer. A client will be able to be confident that once an agreement is signed, the charges for the legal work will never increase beyond what is set out in the fee agreement and the taxes on legal fees that is required to be remitted to the government.

Some firms charge fees of 33% in every case arising from an auto accident.  But do not assume that all lawyers do. We think that rate is not appropriate to every situation. In some cases, that rate is too high for the amount of legal work required and the complexity of the work.

In our firm, we consider the complexity of the case, the amount of legal work likely required, the severity of the injury, and the riskiness of the liability situation before we determine the fee to be charged.  Cases involving professional negligence, like medical malpractice, social worker liability or correctional officer liability may attract a higher fee.

In addition to the fees and taxes, lawyers will usually charge their own necessary expenses to the client.  If the client is successful in the claim, typically the expenses are reimbursed by the losing side in addition to the funds paid for settlement or judgement to compensate an injured person for their injuries.

Contingency fees make it possible for people who have been injured in an accident to obtain compensation for their injuries, when they could not otherwise afford to retain a lawyer.

Helmets – Legal Obligation or Legend?  

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Over the years many of our clients have suffered head injuries while cycling, riding motorcycles or longboards, skiing or skating.

We strongly recommend that everyone who could possibly benefit from wearing an approved helmet while engaging in sporting activities should wear one. A blow from a fall or collision can occur without warning and we have seen too many lives devastated by brain injuries to not want everyone who suffers a head trauma to have every bit of protection possible. Just like seatbelts, helmets can protect a person involved in an accident. However, it is important to be aware not every head injury can be prevented by helmet use, and a failure to wear a helmet is not always negligence.

We have observed that some people have had their claims wrongly denied by ICBC and other insurers with the explanation that the injured person’s failure to wear a helmet caused his injuries. While in some cases, a claimant can be found to have contributed to their injuries as a result of a failure to wear a helmet, the reality is that in many cases a helmet would not have made any difference to a person’s injuries.

The Scientific Situation

Extensive research into the benefits of helmet use has been ongoing since the mid 1990’s.

In general, due to limitations in current helmet technologies and materials, a trade-off exists between protecting against concussion and profound non-recoverable head injury. Most helmet standards for bicycles, motorcycles, snow sports etc. are based on helmet criteria designed to protect heads against severe or catastrophic brain injury. As a result, helmeted participants who engage in activities which may involve head impacts remain at risk for mild to moderate traumatic brain injury until either helmet designs are changed to specifically protect against concussion or new helmet designs and materials are developed which can protect against a greater range of impacts.

The Legal Situation

The Supreme Court of Canada has repeatedly stated that “It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury”…. “As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury.”

We strongly recommend seeking legal advice from an experienced brain injury lawyer if you or a loved one has suffered a brain injury, whether that injury occurred when wearing a helmet or not.  in our firm, we work with accident reconstruction engineers and helmet design experts to determine whether the use of a helmet in a particular case would have made any difference in our client’s particular situation.

 

Your Client’s Mental Health: What every lawyer needs to know

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On November 3rd, 2017, we appreciated the input by various specialist professionals, as Dan Corrin co-chaired this information-rich session on how to deal with mental illness in litigation; Your Client’s Mental Health: What every lawyer needs to know. The conference, and associated webcast for learning these critical skills, covers key areas such as identifying and dealing with mental illness, in order to best serve clients through the litigation process.

The conference opened with a high-level introduction around the context and reality of Mental Illness. This overview revealed the reality that mental health issues affect as many as 1 in 3 Canadians (within a lifetime), and emphasised the need for increased awareness, as well as Mental Health First Aid, to provide a set of skills for overcoming the stigma associated with Mental Illness. In spite of this reality around the incidence of mental illness, in the ground-breaking case of Mustapha v Culligan as outlined in the presentation: Mental Illness and the Law, made by Faith Hayman, wherein the plaintiff, who developed severe depression and anxiety after discovering a dead fly in a bottle of Culligan Water, did not win his case, owing to the judge’s decision that this could not have been reasonably foreseen. From this, it seems that the law is still forming the points of reference to deal with these cases.

These types of challenges in litigation, of liability for factors which occur within one mind, and how much this can be reasonably attributed to external forces, particularly in cases where the victim experiences things which cannot be objectively verified, create a tension in the space where knowing precisely how to understand the mental wellness of clients becomes an imperative. Specifically, in areas of outcomes involving mental illness without injury, we, as legal professionals, require a deep understanding of the circumstances of our clients, as well as a socio-emotional toolbox to help people we can consider as being at risk.

Following these contextual sessions, the event explored issues around clients presenting with anxiety disorders, and how to identify real suicide risks. The stress of litigating can have severe adverse effects on clients, especially for deeply personal and protracted cases, and understanding the preconditions, or identifying or recognising specific dispositions becomes important in managing such cases, or in identifying post-injury effects.

This fascinating suite of presentations together provided a robust set of tools for legal professionals. This serves to better equip them in understanding and caring for clients, but also in strategic case handling in an area where definitions have yet to find their place in legal precedent, and where already complex legal issues are made more so through the indefinable and uncertain aspects of ‘states of mind’.

In the field of brain injury law, mastering the layers of complexity, and managing litigation through a clear understanding of the client, before, during and after the incident takes a certain commitment. By presenting these key skills and definitions, we aim to open a dialogue around these issues, and to strengthen the professional or systemic response to mental illness, whether this be as a result of injury, stress, or the litigation process itself. And through this, to build this new factual framework for these types of cases, and this professional institution we represent – one so key to the attainment of rights.

Interest expenses not recoverable as disbursements following litigation

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This week, the Court of Appeal for British Columbia released reasons regarding an appeal from an order from the BC Supreme Court, which concerned whether or not out-of-pocket interest payments incurred to finance disbursements are recoverable as disbursements.

In MacKenzie v. Rogalasky, 2014 BCCA 446, the Court of Appeal heard argument concerning two cases in which the recovery of disbursements, pursuant to  Rule 14-1(5) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), was in question. Under that Rule, a registrar, when assessing costs, may award “a reasonable amount” for disbursements that “have been necessarily or properly incurred in the conduct of the proceeding”.

The Court summarized the issue of incurred interests, stating:

[4]        Litigants, whether plaintiffs, defendants, third-parties, petitioners or respondents, may find themselves incurring interest expenses in a variety of circumstances. They may personally take out a loan to fund the disbursements incurred in prosecuting or defending a proceeding. Alternatively, they may take advantage of financing arrangements to fund disbursements put in place by their law firms. The record in these appeals describes arrangements, for example, in which personal injury law firms uses lines of credit often provided by lenders specializing in funding disbursements. Those lines of credit may be secured by the assets of the firm or the personal assets of the principals of the firm. The law firm uses the line of credit to fund disbursements (and perhaps other costs of doing business) but the client agrees with the law firm (and perhaps directly with the lender) to be responsible for both principal and interest on disbursements recovered in the action. In the Chandi appeal, for instance, the plaintiff borrowed both from his solicitors and from a third-party lender to fund disbursements, thereby incurring interest obligations. The plaintiff in the MacKenzie appeal also borrowed money from a third-party. Interest may be incurred as an out-of-pocket expense in other circumstances, as well. For example, a party may incur interest costs on unpaid invoices for services provided in the conduct of litigation, such as interest on the cost of an MRI, as in Milne, or an expert’s fees. [5]        It may be surprising that the issue before us has not been authoritatively settled in this Province. Whether the question is open, as the appellants suggest, because it has been conventional wisdom until recently that interest is not a disbursement or because, as the respondents contend, it is only recently that financing litigation has become so difficult and expensive that there is an economic incentive to seek to recover interest costs, is a matter of speculation. The fact is that the question is open and there is a surprising dearth of authority that assists in answering it.The Court, per Mr. Justice Harris, stated that the resolution of the issue lies in the correct interpretation of the applicable Rule, as read “in the context of the purposes of the costs regime and the general legal environment governing recovery of pre-judgment interest, including the Court Order Interest Act, R.S.B.C. 1996, c. 79 (the “COIA”)”.

The applicable Rule 14-1(5) regarding recovery of disbursements is as follows:

(5)When assessing costs under subrule (2) or (3) of this rule, a registrar must(a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and(b) allow a reasonable amount for those disbursements.

The context in which an out-of-pocket expense is incurred, is essential to the propriety of that expense being recoverable following litigation. But, as the Court points out, the interpretation of the term “disbursement” and the phrase “incurred in the conduct of the proceeding” limit the scope of recoverable expenses, and the question becomes one of whether an expense is recoverable only by reason of its being incurred due to necessities arising directly from the legal and factual issues inherent in the particular litigation, rather than from the circumstances of the litigant, or whether any reasonable out-of-pocket expense incurred by a litigant, due to the litigation, is recoverable as a disbursement, provided it was “necessarily or properly incurred”.

In concluding that out-of-pocket interest expenses are not recoverable disbursements, the Court stated:

[8]        On the former view, inherent in the word “disbursement” used in the context of cost recovery and in the phrase “incurred in the conduct of the proceeding” are limits that qualify the scope of recoverable disbursements by requiring a connection between what is necessarily, properly, or inherently involved in the conduct of the litigation in the sense of what is required to prove or disprove a case. By contrast, the latter view captures expenses that may be necessary, not in the conduct of the case as such, but by reason of the particular circumstances of the litigant. On this view, a reasonable amount of any out-of-pocket expense that was incurred during the course of a proceeding, regardless of the underlying reason why it was incurred, is recoverable, subject only to a determination by a registrar that it was proper or necessary to incur it. Accordingly, it is irrelevant whether the expense was incurred because of the impecuniosity of the litigant, rather than arising directly from the issues engaged in the proceeding.

Essentially, the term “disbursement” is not defined, and for that reason, the Court turned to the ordinary rules of statutory interpretation, taking into account the entire context of the term’s usage. From this analysis, the Court concluded the following:

[52]      First, I consider what guidance is provided by the ordinary meaning of the word “disbursement”. I conclude that the ordinary meaning of the word is not decisive, but requires interpretation in the context of the common law and statutory changes to the common law over time. I observe, however, that case law does intimate that the core meaning of the word “disbursement” refers to the expenses arising directly from the issues in the case, rather than the circumstances of the litigant. [53]      Second, I consider legislative changes to the common law governing the recovery of disbursements and pre‑judgment interest. I conclude that that history militates against concluding that the legislature intended Rule 14-1(5) to permit recovery of interest expenses as a disbursement. [54]      Third, I interpret Rule 14-1(5) in the context of the purposes of a costs regime drawing on and applying the principles laid out by the Supreme Court of Canada in Walker. The purpose of a costs regime reinforces the interpretation that out-of-pocket interest expenses are not recoverable.

Following, extensive discussion on each of the first two points, the Court turned to the third conclusion drawn, discussing the role of recoverable expenses against the purpose of a costs regime:

[77]      The conclusion that out-of-pocket interest expenses are not recoverable is supported by the wording of the rule from time to time and the purposes of a costs regime in the justice system. [78]      In my opinion, the various iterations of the rule set out above permitting recovery of expenses focuses most naturally on the exigencies inherent in the particular litigation rather than capturing expenses arising from the financial circumstances or other choices of a party. Embedded in the rule is the requirement for a causal connection between the issues in the case and the expense incurred to prove or disprove them. [79]      The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding. By contrast, interest expenses do not arise from the nature of the allegations or the conduct of proceedings, they arise from unrelated causes including the financial circumstances of a party. In my view, as such, they do not fall within the meaning of the word “disbursements” in the context of a costs rule. [80]      It will be apparent that the conclusion I have reached does not depend on limiting the applicability of the word “disbursements” by reference to the phrase “incurred in the conduct of the proceeding”. I consider that the meaning of the words “disbursement” or “expense” has always excluded out-of-pocket interest expenses. The addition of the phrase “incurred in the conduct of the proceeding” in the rule in 1990 did not narrow or change the meaning of the word “disbursement” or otherwise limit its application. Rather, the phrase reinforces and confirms what has always been the case. To be recoverable a disbursement must arise directly from the exigencies of the proceeding and relate directly to the management and proof of allegations, facts and issues in litigation, not from other sources. In my view, that is what is captured by the phrase “the conduct of the proceeding”. [81]      In my opinion, this interpretation of the rule flows naturally from the purposes of a costs regime and the guidance provided on that subject by the Supreme Court of Canada, most particularly in Walker. Several points emerge which assist in interpreting the rule. The first is that a costs regime serves multiple functions, only one of which is indemnification. Even in respect of that function, the costs regime provides only partial, and not full, indemnity to a successful party. Accordingly, one is not compelled to conclude that interest expenses must be recoverable because the purpose of the rule is to make a successful party whole. To the contrary, partial indemnification underlies both the recovery of costs on a tariff and disbursements (because the reasonable amount awarded may not fully indemnify the cost of necessary or proper disbursements). [82]      Second, within the context of partial indemnification, costs awards should be predictable and consistent across similar cases. Only if this is the case can parties accurately assess the risks of engaging in litigation and make rational decisions about settling or prosecuting the case. Recognizing interest expenses as recoverable disbursements is inconsistent with this objective because exposure to costs and disbursements would not depend on the nature of the case itself, but on the particular circumstances of a party. These circumstances may well involve the relationship between the party and counsel and be matters the opposing party has no right to know. [83]      Third, although costs regimes may affect access to justice, the Supreme Court has made it clear that costs are not the means of securing access to justice, except in exceptional circumstances. Of this more below. [84]      Finally, costs awards relate to the particular case and are made as between the successful and the unsuccessful parties. On the facts of these appeals, it seems reasonable to infer that recognizing interest as an expense would lead to a transfer of resources between classes of parties in which unsuccessful defendants are exposed to the risks of paying high interest rates designed to pay for the cost of lending money, not just to the successful party in the case but other plaintiffs who receive financing but may not recover moneys to pay for their loans. I expand on this concern a little later in these reasons. …
[91]      More telling, in my view, is the function of the costs regime in providing predictability and consistency in costs awards that allow parties rationally to assess the risks of litigation and to guide their conduct accordingly. There can be little doubt that recognizing interest as a disbursement would undermine that purpose since costs awards would vary not according to the nature of the case, but according to the financial circumstances of a successful party. Moreover, the proposition that an unsuccessful party should pay roughly similar amounts across similar cases would be undermined if interest expenses counted as disbursements. This follows not only because the amount of interest paid depends on the financial circumstances of the litigant, but it may also follow for other reasons unconnected to the issues in the case. [92]      It is apparent from the record that the interest rates charged to successful plaintiffs by lenders are high relative to prevailing interest rates. It is reasonable to infer, given that the lender’s recourse is limited to the settlement or judgment amount, that the interest rate charged by lenders reflects the risk they carry on loans to unsuccessful plaintiffs. Accordingly, if one were to assume that the interest rates are reasonable in light of the portfolio of risk, the effect of recognizing interest expenses as a disbursement is that the cost of financing a portfolio of successful and unsuccessful plaintiffs’ cases is being transferred to unsuccessful defendants. Unsuccessful defendants are not required to subsidize unsuccessful plaintiffs’ cases or the costs of running a plaintiff’s side personal injury practice. In my view, this result is not consistent with ensuring that costs awards are specifically referable to costs incurred in the particular litigation itself. I see no obvious way that registrars could be expected to eliminate the “subsidy” component inherent in these financing arrangements.

For the reasons noted, the Court allowed the appeal, setting aside the orders of the Supreme Court and of District Registrar Cameron, restoring the order of Registrar Sainty, stating:

[93]      I conclude that an out-of-pocket interest expense incurred to finance disbursements is not a recoverable disbursement under Rule 14-1(5). I acknowledge that this result is likely inconsistent with the position in New Brunswick and possibly Ontario. To the extent that this is the case, I am respectfully, and for the reasons set out above, unable to agree with the conclusion those courts reached

BC Supreme Court clarifies entitlement to “revival” of part 7 disability benefits

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In the case of Symons v. Insurance Corporation of British Columbia 2014 BCSC 1883, a summary trial application, the Court considered the “revival” of ICBC disability benefits following the Plaintiff’s attempt to return to work. In reasons for judgment, released today, the BC Supreme Court clarified when an individual insured through ICBC is entitled to receive temporary total disability (TTD) benefits, under Part 7 of the Insurance (Vehicle) Regulation.

Here, the Plaintiff had been seriously injured when her vehicle was hit from the rear by a large truck, on April 20, 2008.These injuries were immediately disabling, and the Plaintiff was paid TTD benefits until early May of that same year. After taking these two weeks off from work, the Plaintiff felt compelled to return to her regular employment, as she had just recently started her own business and had purchased a home with a mortgage. She returned to work in what the court called a “creditably stoic and determined manner”, hoping to return to normal life after the accident.

It was soon clear that the Plaintiff’s injuries were not going to ameliorate over time, despite her initial and continued efforts of engaging in various forms of therapy. The Plaintiff underwent two separate discectomies, neither of which was successful in alleviating the Plaintiff’s symptoms, and she developed anxiety and depression associated with her disability. Since February 12, 2012, the Plaintiff was unable to work, and on January 23, 2013, she sought to have her TTD benefits from ICBC reinstated. By the time the Plaintiff filed the present Application, on February 4, 2014, the Defendant Corporation had not yet delivered a proper response.

In its reasons for judgment, the Court sets out the relevant provisions under Part 7:

[14] Sections 79 and 97 of the Regulation mandate that, to be entitled to Part 7 disability, medical or rehabilitation benefits, a person must:a)     be an “insured” person as defined in s. 78 (section 79(1));b)    have been injured in an accident involving the use or operation of a vehicle that occurred in Canada or the United States (section 79(1));c)    promptly give ICBC notice of the accident (section 97(1)(a));d)   give ICBC a written report of the accident with particulars of the circumstances in which the accident occurred and the consequences of the accident no more than 30 days after the accident (section 97(1)(b)); ande)   give ICBC a proof of claim within 90 days of the collision (section 97(1)(c)).[15] There was no dispute, on this hearing, that the plaintiff complied with all of these preconditions to entitlement. [16] Section 80 of the Regulation provides:80(1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the [defendant] shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter …(a) the applicable amount of disability benefits set out in section 2 of Schedule 3 [in this case, $300 a week].[17] Total disability after 104 weeks is governed by s. 86 of the Regulation, which provides:86 (1) Where an injury for which disability benefits are being paid to an insured under section 80 or 84 continues, at the end of the 104 week period, to disable the insured as described in the applicable section, the corporation shall, subject to subsections (1.1) and (2) and sections 87 to 90, continue to pay the applicable amount of disability benefits to an insured described in section 80 or 84(a) for the duration of the disability, or(b) until the insured reaches 65 years of age, whichever is the shorter period. [Emphasis added]

The Plaintiff took the position that, once she met the prerequisites for total disability within the meaning of Part 7, the fact that she was able to return to work, even for a significant period of time, does not disentitle her to the TTD benefit payments after she again became totally disabled by injuries she had sustained in the same accident.
ICBC denied this, relying on the plain language of s86 of the Regulation, in asserting that the Defendant’s obligation to pay the Plaintiff TTD benefits ended at the time she was able to return to work. As Mr. Justice Baird points out at [21]:

… Essentially, they say that TTDs cannot be revived or reinstated outside the 104-week period referred to in both ss. 80 and 86 of the Regulation: see the underlined phrase in s. 86, above, for the wording in contention, along with Rashella at para. 32 and Andrews v. Roffel, [1998] B.C.J. 631 (S.C.).

The Court considered the jurisprudence on the “revival” of TTD benefit payments, referring to a number of recent casea which led the Court to find, at [35] – [36]:

[35] Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:1.     Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period. 2.     Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability. 3.     Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.[36] The plaintiff in this case established entitlement under s. 80, and seeks revival under s. 86. In my view, the plaintiff is entitled to a revival of her TTDs. While none of the cases have taken the exact step that the plaintiff urges upon me, Brewer, Halbauer, and Cai have certainly cleared the path. Indeed, there is a plausible argument that Cai has already answered this question in the affirmative. For convenience, I repeat Bruce J.’s conclusion: Section 86 should be interpreted in a purposive manner. Provided the insured remains eligible for benefits under s. 80, whether or not they are currently in receipt of monies from ICBC pursuant to that provision, they are eligible to apply for a continuation of those benefits under s. 86. [Emphasis added.]

The Court also sought to clarify the intent of the legislation, adding, at [40] – [42]:

[40] The Regulation is part of a legislative scheme of universal compulsory vehicle insurance. It is designed to provide “no fault” benefits to insured persons who are seriously injured in motor vehicle accidents. These benefits are meant to temper the negative financial consequences — in particular, the loss of employment or homemaking ability — that flow from such injuries.[41] Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies. [42] In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)

Continuing, with regard to interpretation of the Regulation, at [43] – [44]:

[43] In Halbauer, the court rejected the plain meaning of another provision in the Regulation because that interpretation led to absurd consequences and frustrated the rehabilitative object of Part 7. A similar concern animated the court in Brewer, where Melnick J. noted at para. 18 that, absent a right to reinstatement, “claimants may be reluctant to attempt to return to work when they experience improvement for fear that, if the improvement proves to be temporary, their benefits will not be reinstated.” [44] I have similar concerns about the defendant’s interpretation of the regulatory provisions under consideration in this case. Given that Brewer has already established a right to reinstatement prior to the 104-week mark, the plain meaning interpretation of s. 86 would simply encourage claimants to end any attempt to return to work at the 103-week mark or, as observed in Brewer, to avoid such an attempt entirely.

The Court then concluded:

[49] I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs under s. 80; b) they can demonstrate that they are totally disabled as defined in s. 80; and c) they can show that the total disability is due to injury sustained in the original accident.The Plaintiff was granted a declaration that she is entitled to TTD benefits, as well as medical and rehabilitation benefits, under Part 7 of the Insurance (Vehicle) Regulation. Judgment was ordered in her favour, for benefits that ought to have been paid following her first discectomy, and for her current period of total disability.

Plaintiff awarded $3.1m for nightclub assault after defendants snub settlement offer of $1.4m

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The case of Maras v. Seemore Entertainment Ltd., 2013 BCSC 1842, involved a Plaintiff who was assaulted outside a Downtown Vancouver nightclub. Liability for the incident was shared by the corporate Defendant, which owned the nightclub, and three of the club’s security personnel or “bouncers”, in a judgment delivered on June 9, 2014 The Plaintiff was found not to be contributorily negligent.

Before trial, the Plaintiff had made three separate formal offers to settle the matter:

  1. The first offer, made on March 6, 2012, was for $1,800,000 plus costs and disbursements, in exchange for a consent dismissal order on a without costs basis. This offer was not responded to by the Defendants.
  2. The second offer was made on April 3, 2012, approximately two weeks before a 20 day trial was set to commence with a jury, though trial did not proceed at that time. This offer was also in the amount of $1,800,000 plus costs and disbursements, payable by the Defendant Seemore Entertainment Ltd., in exchange for a consent dismissal order on a without costs basis. Additionally, the Plaintiff offered to waive his claim for punitive damages and all claims against the other parties, upon payment. This offer had been left open for over one year, and was formally withdrawn on June 27, 2013.
  3. The third offer to settle was made on September 9, 2013. This offer was for $1,425,000 plus costs and disbursements. The Plaintiff additionally offered to waive his claim for punitive and exemplary damages, if the offer was accepted. This offer was left open for acceptance for ten days, but the Defendants again did not respond.

Prior to commencement of the trial on April 7, 2014, three of the Defendants had made one offer to settle, which was put forward on June 3, 2011, in the amount of $20,000 inclusive of costs but not disbursements.

At trial, the Plaintiff was awarded damages in the amount of $3,084,200.

The Court now had to consider judgment in relation to costs. The applicable principles in this assessment included Supreme Court Civil Rule 9-1(4)-(6):

Offer may be considered in relation to costs

(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Also considered were a number of principles generated in case law, which had been outlined in the case of Bideci v. Neuhold 2014 BCSC 1212, examined at [31]:

(a) the party “seek[ing] to displace the usual rule [as to costs] has the burden of persuading the judge that the rule should be displaced: Giles v. Westminster Savings and Credit Union, 2010 BCCA 282 (CanLII) at para. 75, citing Grassi v. WIC Radio Ltd., 2001 BCCA 376 (CanLII) at para. 24;

(b)  the overarching purpose of Rule 9-1 is to promote reasonable settlements and to attach some consequences to the failure of a party to accept a reasonable settlement: Brewster v. Li, 2014 BCSC 463 (CanLII) at paras. 15-16;

(c)  the present Rules provide the court with considerable discretion to define and fix an appropriate cost award: Brewster v. Li at para. 14, citing Bailey v. Jang, 2008 BCSC 1372 (CanLII) at paras. 10, 18. The presumption under Rule 14-1(9) that a successful party is entitled to his costs is subject to the broad purpose of Rule 9-1 and the opportunity for judicial discretion under Rule 9-1(4) in that “the court may consider an offer to settle when exercising its discretion in relation to costs. Rule 9-1(5) enumerates the orders the court may make. In making an order under subrule (5), the court may consider the factors listed in subrule (6)”: Wafler v. Trinh, 2014 BCCA 95 (CanLII) at para. 79 [emphasis in the original];

(d)  unlike under the former Rule 37, it is not mandated under Rule 9-1 that a plaintiff who rejects a reasonable offer should face some sort of sanction. Rather, “[t]he permissive wording in Rules 9-1(5) and (6) indicates the legislature intended to preserve the historically discretionary nature of costs awards, including an award of costs where an offer to settle has been made”: Wafler v. Trinh at para. 82 [emphasis added in Bideci v. Neuhold];

(e)  in addition to indemnifying a successful litigant, the purposes for which cost rules exist were articulated by Frankel J.A. for the court in Giles v. Westminster at para.74 and include:

      • “deterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 1988 CanLII 186 (BC CA), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave to appeal to the S.C.C. refused, [1988] 1. S.C.R. ix
      • “to encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore, [1995] 2 B.C.L.R. (3d) 201 at 208 (C.A.);
      • “encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases”: Bedwell v. McGill, 2008 BCCA 526 (CanLII) at para. 33; and
      • “to have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 (CanLII) at para.16.

The Court found that the proposition that a plaintiff should face sanctions for not accepting a reasonable offer applies equally to defendants. The question then turns to whether any of the formal offers were ones that ought reasonably to have been accepted by the Defendants, an indicator being whether or not the offer was within the range of reasonably expected outcomes.

In finding that all three of the offers were not offers that ought reasonably to have been accepted by the Defendants, the Court pointed to the following, at [46]:

      • the examinations for discovery of all the defendants were not completed until the fall of 2013;
      • the garnering of medical and other evidence by both the plaintiff and the defendants, but particularly the defendants, pertaining to the plaintiff’s injuries and the effect on his functioning was ongoing after Offer #3 expired;
      • the plaintiff’s biomechanical engineering expert report pertaining to the forces required to cause the plaintiff’s injuries was not served on the defendants until January 2014; and
      • the change to the court-ordered discount rate came into effect as of April 30, 2014, after the commencement of the trial and after the plaintiff’s economist had testified. Mr. Carson prepared revised reports that increased the defendants’ maximum exposure for damages for loss of earning capacity and cost of future care by almost $1 million. He was also recalled to give evidence with respect to his revised reports dealing with this issue.

However, the Court did find that significant cost consequences were applicable to the unsuccessful Defendants, in their decision to see the case through a lengthy jury trial. The reasons for this included factors discussed at [47]:

  1. a)    by mid-January 2014 at the latest, the defendants were well aware of the risks they were assuming in taking this action to trial;b)    while offers to settle are often left open for acceptance up to the eve of trial, it is not a prerequisite to the court’s exercise of discretion on costs that this occur;c)    insofar as liability was concerned, by mid-January 2014, all examinations for discovery had been completed and the individual defendants’ denial of any involvement had been tested under oath. In addition, the plaintiff’s biomechanical engineering report had been received. The defendants chose not to serve any engineering report in response;d)    I do not accept the defendants’ submission that the conduct of the plaintiff’s counsel impeded their ability to access Mr. Caines-Walker and Ms. Frigon, the two independent witnesses to the incident. In August 2012, the defendants brought an application to examine these two witnesses under oath. This application was dismissed by Master Scarth with liberty to re-apply. The basis of this order was that a list of written questions had been provided by defence counsel to be answered by Mr. Caines-Walker and Ms. Frigon and if counsel were not satisfied with the responses received then there was liberty to reapply to examine these potential witnesses under oath. Defence counsel was satisfied with the answers received and an examination under oath was not pursued;e)    as for the defendants’ exposure on damages, they knew or should have been well aware by mid-January 2014 as to the potential magnitude of the claim. The defence experts were in agreement that the plaintiff had sustained a complicated mild traumatic brain injury. There was an issue as to whether cognitive behavioral therapy had been undertaken by the plaintiff and, if not, the extent to which that therapy could assist him in the future. However, there was no real dispute that the plaintiff’s functioning had been seriously compromised by the injuries that he had sustained. He was a young man in his 20s. There was a serious claim advanced as to the loss of a potential professional soccer career. The evidence led on the plaintiff’s behalf that his future employability would likely be restricted to a sheltered environment was not seriously tested by the defendants’ experts;f)     the plaintiff made three attempts to settle his claims;g)    the only offer made by the defendants prior to the trial commencing in April 2014 was the June 2011 offer for $20,000 plus disbursements; andh)  notwithstanding this set of circumstances, the defendants, as counsel candidly admitted during submissions, made the decision, which was their right, “to take the case to trial and let the jury decide”.

The Court awarded the Plaintiff costs at 1.5 of the unit amounts for the preparation and attendance at the trial, as of January 15, 2014, and the Defendants were ordered to pay  costs on the basis of one and one-half counsel for preparation and attendance at trial.

Vehicle v. Moose

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I am often asked whether a person who has been injured as a result of a collision with a moose has a viable claim. You may think the answer is obvious: “of course not, moose don’t carry insurance!”

While it’s true that moose are uninsured, a passenger in a vehicle involved in a collision with a moose CAN bring a claim for personal injury.

We’ve successfully brought a few cases of this nature.

For this type of claim to succeed, you have to be able to show that the driver should have been able to avoid the moose.  To do this, we have made reconstructions and also brought evidence about moose, for example, their size and the fact that they often travel in herds. This type of evidence can help to prove that, had the driver been keeping a proper lookout, he would have seen the moose and the accident could have been avoided.

Collisions involving vehicles and moose can be very serious and the injuries sustained by a driver or passenger, quite severe.

Moose are large animals, larger than the average vehicle. The point of impact in a collision involving a vehicle and a moose will often be at the moose’s legs. Following impact, the moose will then fall on top of the vehicle. The consequences can be quite significant for the people in the vehicle.

In the cases I’ve worked on that involved this type of scenario, some of my client’s injuries were quite devastating. They suffered brain injuries, facial crushes and damage to the orbital bones.

Drivers who are involved in “Vehicle v. Moose” collisions can still access Part 7 Benefits, which include coverage for medical, rehabilitation, death and wage loss benefits.  This is because Part 7 Benefits, also called “No-Fault Benefits”, are available even if you are the party responsible for causing the accident.

Q&A – Ask a Brain Injury Lawyer

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What happens if I am responsible for an accident that causes injuries to my partner or children?

Many of our clients have found themselves in the situation of being involved in an accident that might be the fault of a family member. Sadly some people have found themselves responsible (in whole or in part) for injuries suffered by someone they love, including their own child. Mistakes can happen in a spilt second. We all make them. But if someone is injured as a result of these mistakes, the most important thing is to ensure that all available care is provided.

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Q&A – Ask a Brain Injury Lawyer

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How long will it take to resolve my legal claim?

If you have suffered a brain or spinal cord injury as a result of an accident it will usually take an average of three to four years to resolve your case. However, there are many factors that go into resolving a case and your case could be resolved in as little as a few months or in more than five years.

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8 Tips for selecting a lawyer

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The questions below are designed to help select legal counsel, yet they can also form the basis for the selection of a specialist in any related field. Not all professionals are equally qualified to provide services following brain injury. Search for and retain the best in each field.

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