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$95,000 Pain and Suffering Award for Wrist Injury- Re-open Trial Refused


This personal injury claimant suffered a severe fracture to his right wrist when the vehicle in which he was a front-seat passenger was involved in a car accident, running head-on into a hydro pole. He also sustained some soft tissue injuries to his back and neck which fully healed over the course of about six months. The focus of this personal injury lawsuit was on the wrist injury, and the complications that ensued (Ozeer v. Young,2015 BCSC 542).
The claimant asked to reopen his case to provide more evidence of his loss of earnings. This request was refused. The principles governing an application to re-open under Rule 40(7) of the former Supreme Court Rules, were summarized as follows:

(a) The rule is to be “used sparingly, only if a clearly meritorious case is made out and where substantial injustice might otherwise be done, as no doubt it is a rule easily susceptible of abuse and liable, if too freely applied, to serve as an encouragement to carelessness”: Turgeon J.A. in Kowalenko v. Lewis and Lepine, [1921] 2 W.W.R. 504, 35 C.C.C. 224, 59 D.L.R. 333 (Sask. C.A.), cited in C.I.B.C. v. MacKinnon, [unreported judgment of Taylor J. of the BCSC dated 23 January 1981].

(b) The rule is not designed to enable a party to put his case twice, but rather to prevent the claim being disposed of without consideration of its merits; C.I.B.C. v. MacKinnon, supra.

(c) The rule should not be used to permit introduction of a substantial amount of new evidence relating generally to the issues in the case: Swami v. Lo (1979), 15 B.C.L.R. 321 (S.C.). It may be noted that the rule uses the word “fact” in the singular rather than referring to the more compendious term “evidence”.

(d) The rule refers to proof of “some fact” omitted, not to proof of opinions. It does not appear to permit reception after the trial of opinion evidence.

(e) The court must be careful to avoid the abuse to which the rule is susceptible. In this connection, it is relevant to inquire into the reasons for the failure to prove the omitted fact at trial. While it is not essential to establish that the failure to tender the evidence at trial was the consequence of an accidental slip or oversight, such evidence counters the possibility that the applicant deliberately or heedlessly split his case thereby abusing the process of the court.

The last sentence in (c), and paragraph (d), with respect, would no longer appear to be valid considerations, given the subsequent decision of the Court of Appeal in Hamiltonsupra. In my view, however, the other principles cited are equally applicable to an application to re-open on the basis of the court’s inherent jurisdiction.

 The claimant was awarded over $300,000 summarized as follows:
Pain and Suffering: $95,000.00
Income Loss to Trial: $40,900.00
Loss of Future Earning Capacity: $150,000.00
Cost of Future Care:  $15,000.00
Out of pocket expenses: $1,374.30
Total:        $302,274.30
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Car Accident Claim, icbc case examples, New Civil Court Rules, Pain and Suffering, Re-open personal injury case, Rule 40(7), Wrist Injury

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"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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