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COURT AFFIRMS NEED FOR “CONVINCING EVIDENCE” WHERE EVIDENCE OF INJURY IS ENTIRELY SUBJECTIVE

posted Monday, June 25, 2012 by Luke Zacharias and Jordan Forsyth

In CARTER v. ZAHN, 2012 BCSC 595 (“CARTER”), a judgment released on April 24, 2012, Verhoeven J. held that requiring “convincing evidence” where a plaintiff presents only subjective evidence of ongoing injuries does not contradict Rothstein J.’s holding in F.H. v. McDOUGALL, 2008 SCC 53 (“McDOUGALL”) that there is only one standard of proof applicable to civil cases. In McDOUGALL, Rothstein J. held that the only standard to be applied in civil cases is the “balance of probabilities” standard, and that this standard does not allow for varying gradations of proof according to the facts of the...

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COURT OF APPEAL UPHOLDS LIABILITY WAIVER DECISION

posted Monday, June 25, 2012 by Luke Zacharias and Jordan Forsyth

In LOYCHUK v. COUGAR MOUNTAIN ADVENTURES LTD., 2011 BCSC 193 (the subject of a past blog entry available here: http://www.fraservalleyinjurylawyers.com/blogs/2011/02/23/release-liability-found-be-enforc), Goepel J. held that the Plaintiff could not sue an outdoor adventure company for the injuries she suffered in a zip-lining accident because of the release form she had signed. This decision was appealed to the BC Court of Appeal, which recently confirmed Goepel J.’s conclusion that the Plaintiff’s action was barred by the fact that she signed the release before the zip-lining. In the Court...

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COURT OF APPEAL CONSIDERS GAP IN PLAINTIFF'S REPORT OF SYMPTOMS

posted Monday, March 19, 2012 by Luke Zacharias and Jordan Forsyth

In EDMONDSON v. PAYER, 2012 BCCA 114 (“EDMONDSON”),  a judgement released on March 8, 2012, the Court of Appeal considered and rejected a number of arguments by the appellant (the Defendant), who was appealing from a judgment that awarded the Plaintiff $40,000 in non-pecuniary damages due to injuries suffered in a motor vehicle collision.  One of these arguments was based on the fact that there was a 31-month gap between reported symptoms in the Plaintiff’s clinical records. In the trial decision of EDMONDSON (reported at 2011 BCSC 118), Smith J. considered arguments by the...

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EFFECT OF VIDEO SURVEILLANCE ON ASSESSMENT OF DAMAGES

posted Friday, February 17, 2012 by LUKE ZACHARIAS AND TROY ESTENSEN

On December 23, 2011, the BC Supreme Court released a decision on the use of video surveillance evidence in a motor vehicle accident case. In Wilkinson v. Whitlock, 2011 BCSC 1781 the Plaintiff was injured in a 2007 motor vehicle accident in Vernon, BC. The Defendant was found completely at fault after it was determined that she drove through a red light and collided with the Plaintiff’s vehicle. As a result of the collision, the Plaintiff claimed that she suffered an injury to her back. During the trial, the Plaintiff testified about her symptoms. In response to the Plaintiff’s complaints of...

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