#301-2706 30th Avenue
Vernon, B.C. Canada V1T 2B6
Hours: 8:00 am to 4:30 pm
Monday to Friday
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Telephone: 250-542-5353
Toll-Free: 1-800-243-5353
Fax: 250-542-7273
HALLER v. GALEY
Jury Trial Conducted by James Cotter and Ryan Irving, December 2015
Our client, Mr. Haller, was 62 years old at the time he was injured in a high speed, rear-end motor vehicle accident. Following the accident, he suffered from a significant neck injury and debilitating headaches, as well as problems with balance and vertigo, requiring him to use a cane. At the time he was a logging truck driver who had taken time off of work for treatment of cancer. Mr. Haller intended to return to work in his chosen profession once he had finished his treatments. He had been driving a logging truck for nearly 40 years, and had no intention of retiring any time soon.
ICBC was the insurer for the Defendant Galey, who hit Mr. Haller’s vehicle from behind. ICBC took the position that Mr. Haller was not going to return to work as a logging truck driver even if the accident had not occurred, as he was fighting cancer, he had diabetes, and he was too old. ICBC took this position despite the fact that Mr. Haller had evidence supporting the fact that he had worked all of his life, and that he wanted to continue working, and he did not have limitations to working prior to the accident. This was supported by his medical records, his financial records and his co-workers and friends.
ICBC set the matter down to be heard in front of a jury. James Cotter, a senior litigation partner at Nixon Wenger LLP and Ryan Irving, a litigation associate, conducted the trial on behalf of Mr. Haller. At the trial, the Defense argued that any continued problems that Mr. Haller had with regard to being unable to work related to his diabetes rather than injuries suffered in a high speed accident. Cotter and Irving obtained expert opinion evidence from a medical doctor with specialty in physical medicine and rehabilitation, as well as a doctor with a specialty in ear, nose and throat conditions (primarily balance related issues). Both of these medical experts provided opinions that Mr. Haller’s chronic, debilitating neck pain, headaches, and balance issues all stemmed from the trauma due to the accident. The Defense retained its own expert, who had the unique opinion that the accident was not a contributing factor for Mr. Haller’s current disability, rather it was his diabetes that was causing balance issues, which prevented him from working.
After a week-long trial, the jury verdict came back largely in agreement with Mr. Cotter’s submissions regarding Mr. Haller’s claim. The verdict was a fair result, which was far more than what ICBC had offered. The jury believed Mr. Haller and his medical experts in regard to his injuries and his intention to keep working. They did not accept the Defendant’s argument that he was too old or that his diabetes was preventing him from driving his logging truck. It was a just result for Mr. Haller, who showed courage to take this matter to a trial in the face of ICBC’s low offer. The jury applied common sense and arrived at a fair result.
Kylie Walman, was retained to go to the Court of Appeal on behalf of one of the parties in a family law dispute concerning whether he and his ex-partner were spouses. The opposing party (she) took the matter to the BC Supreme Court arguing that the couple were not spouses and consequently the Family Law Act should not apply, which would require her to pay spousal support and the couples’ property be divided. She lost at the Supreme Court and appealed the matter to the Court of Appeal. We were successful and the Court of Appeal upheld the Supreme Court’s decision finding that the couple were indeed spouses, having lived together for more than two years in a “marriage-like” relationship. The wife argued vigorously that the court should not find a spousal relationship unless it’s clear the couple intended to live as spouses and intended to have the same laws applied to them as are applied to married couples. The Court of Appeal disagreed and held that determining whether a couple are spouses requires an examination of the nature and quality of the relationship. The Court agreed that intention is important but it’s the intention to live together for an indeterminate amount of time, in a relationship similar to marriage; not the intention to be bound by particular laws. The Court also made clear that after-the-fact statements or evidence about the parties’ intentions during the relationship will only be given weight where it’s consistent with other objective evidence regarding the nature of their relationship.
She has now applied for leave to appeal the decision to the Supreme Court of Canada. A decision from the Supreme Court of Canada as to whether they will hear the matter is expected sometime between April – June 2016.
http://www.canlii.org/en/bc/bcca/doc/2015/2015bcca492/2015bcca492.html?autocompleteStr=weber%20v.%20lec&autocompletePos=2
Wills variation claim.
Senior Litigation Partner Mike Yawney was retained by the father of a 20 year old daughter who was severely injured in a motor vehicle accident to assist her in pursuing a claim for life changing injuries. She had no memory of the accident. She suffered a moderate to severe brain injury in the accident, along with other physical injuries that required a lengthy hospital stay and rehabilitation. The claim was difficult to pursue because the young woman was initially blamed for causing the accident. After retaining the involvement of accident reconstruction engineers, human factors experts, and an extensive investigation of the accident, our team was able to substantiate an argument that the young woman was not solely responsible for causing the accident; that other parties had some responsibility for it occurring.
In addition to a hard fight on liability, the assessment of the young woman’s injuries also required extensive work. Several medical specialists were retained to assess the plaintiff, including a physiatrist, neuropsychologist, neurologist, psychiatrist, occupational therapist and life planning/care experts, economists and life expectancy experts, along with a case manager to assist the plaintiff in her day to day life. The matter resolved shortly before a month long scheduled trial for approximately $2,200,000.00 including costs.
Mr. Cotter represents a young lady injured in a motor vehicle accident where her main injury is a chronic whip lash injury to her neck. This claimant was only 17 years old when it happened, and she is still recovering from the injury, such that it is unclear as to her degree of recovery. Even though the claim had just been started, the ICBC lawyer demanded particulars relating to this young lady’s past wage loss and her claim for wage loss in general. Despite being advised that this type of information was premature, ICBC proceeded with its application seeking this information and also seeking costs personally against Mr. Cotter. The Master who heard the application dismissed ICBC’s application for particulars and ordered costs against them. In essence, the application for particulars was deemed to be premature, and the tactic of seeking costs personally against a claimant’s lawyer was deemed to be inappropriate.
Click here to read the Court Decision.
Senior Litigation Partner Mike Yawney was retained by a 48 year old man who was hit broadside by a vehicle that failed to stop at a stop sign. The impact was a significant one and caused soft tissue injuries, principally back and neck, which affected the day to day functioning of the client who had a small hobby farm. While the client recovered to some extent, he was left with some limitations, in particular, in terms of being able to perform all the chores he had to do on his farm. The claim settled a month prior to the scheduled trial date for a total of $495,000.00.
Mike Yawney, senior personal injury litigation partner, and associate Ryan Irving, took this claim to trial. The Plaintiff, Mr. Dunbar, had been injured in a head on collision on Hwy 97 near Salmon Arm, B.C. on July 6, 2011. He was a tradesperson and was on his way to work when the accident occurred. He suffered neck, back and hip injuries as a result of the accident. Due to his stoic nature and the financial needs of his family (he had a wife and child to support), he went back to work shortly after the accident and toughed it out until his back gave out about 14 months later. The medical evidence supported that his back and other problems were caused by the accident, and despite the fact that his income had gone up after the accident, that he was entitled to compensation for past and future income loss due to his injuries. He also recovered damages for pain and suffering, as well as for future care needs and out of pockets expenses.
The defendants took the position that the Plaintiff had recovered from his injuries in the accident and argued that his damages were limited. In a hard fought two week trial, the trial judge awarded a total of $670,000.00 in damages, plus legal costs, to the Plaintiff. The evidence and argument presented by Mr. Yawney and Mr. Irving, including the medical evidence of multiple experts, succeeded in persuading the Court that the Plaintiff was entitled to substantial compensation for the injuries suffered in the accident and for the long term impact it would have on his life.
Michael Yawney, Senior Litigation Partner, was retained by Mr. DeMarco to pursue a claim for injuries against a long haul truck driver, and the freight company he worked for. As a result of the efforts of Mr. Yawney in a liability trial in 2012 where he successfully argued that the truck driver had gone through a red light on Hwy # 1 near Revelstoke, B.C. and struck Mr. DeMarco’s vehicle broadside. An interesting aspect of this claim was that Mr. Yawney originally was counsel for the two passengers in Mr. DeMarco’s vehicle; when he was successful their joint trial on liability, Mr. DeMarco (who was a defendant in that action as a driver of one of the vehicles involved in the collision) retained Mr. Yawney to pursue his personal injury claim. Mr. DeMarco’s claim was settled just prior to a March 2, 2015 trial date to assess his damages.
Click here to read the Court Decision.Recent personal injury claim obtains a judgment of approximately $2.5 million.
Senior personal injury partner, Mike Yawney, took this claim to a month long trial in January 2014, with judgment being rendered in May 2014. It involved an 18 year old young male Plaintiff from Salmon Arm who suffered a severe traumatic brain injury while riding as a passenger in a motor vehicle being operated by his friend. Complicating factors were that the Plaintiff had just graduated from high school about 4 months prior to the accident and had not yet embarked on a specific career path. In addition, the Plaintiff appeared to be functioning well in the months after the accident and so the extent of the damage to his brain and his ability to function was also an issue.
Severe traumatic brain injuries are complex injuries to assess and quantify in terms of damages. Mr. Yawney and his personal injury team, including legal assistants and paralegals, spent 3 years putting the claim together, which involved multiple medical assessments with follow up, as well as team meetings with rehabilitation personnel, and in home meetings with the Plaintiff to monitor his ongoing progress and functioning. A range of different experts were retained from medical specialists in neurology, neuropsychology, physiatry and neurosurgery, to future care/rehab experts and economists to help assess the income losses suffered by the Plaintiff if he was unable to work.
After a hard fought, month long trial, we obtained judgment for the client of approximately $2.5 million and then negotiated the balance of other heads of damage to be determined. The claim in total was worth more than the available insurance limits. The result was well in excess of what the Defence offered on the claim prior to trial and represents the maximum amount the Plaintiff could have recovered, other than trying to take steps to recover anything in excess against the Defendant who caused the accident. The damages included $650,000.00 for future care, $1.8 million for future income loss, as well as $235,000.00 for pain and suffering and close to $100,000.00 in past income loss. There were also modest in-trust awards for the Plaintiff’s mother and girlfriend who had assisted him since the motor vehicle accident.
This claim is an example of how the skill and expertise of Nixon Wenger’s personal injury team was able to assist a client whose life was irreparably changed by a motor vehicle accident. With a severe traumatic brain injury claim, having the skill and expertise to recognize what needs to be done and most importantly, in managing the Plaintiff’s needs up to and through the point of trial, requires an expert legal team. Being prepared to go to trial and having the skill and expertise to back that up is how these claims are successfully concluded. Click here to read the Court Decision. Click here to read the Supplemental Reasons (cost of care).
#301-2706 30th Avenue
Vernon, B.C. Canada V1T 2B6
Hours: 8:00 am to 4:30 pm
Monday to Friday
Wheelchair Accessible
Telephone: 250-542-5353
Toll-Free: 1-800-243-5353
Fax: 250-542-7273
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