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$7M award from B.C. Supreme Court for beating shows significant costs determination: lawyer

Personal injury lawyer laments tragic consequences of incident, which led to brain surgery and coma

$7M award from B.C. Supreme Court for beating shows significant costs determination: lawyer
Erik Magraken is managing partner of MacIsaac & Company

In a tragic case in British Columbia, the Supreme Court of British Columbia awarded a man who was savagely battered with a baseball bat almost $7 million in damages in Simpson v. Teichrieb, 2021 BCSC 210.

Lawyers should understand and thoroughly explore the concepts of non-pecuniary damages, diminished earning capacity and future care costs, which can be significant in cases involving profound brain injury and serious loss, a personal injury lawyer commented about the case.

Erik Magraken, managing partner of MacIsaac & Company, wrote a blog post summarizing the case.

“This is a tragic case and one likely involving no insurance and perhaps a substantially dry judgement,” Magraken said to Canadian Lawyer. “Tragic consequences.”

The 18-year-old plaintiff suffered a catastrophic brain injury, significant brain swelling, skull and facial fractures and a bruised back following a confrontation with the 39-year-old defendant in the latter’s yard. They exchanged punches because the defendant was concerned about potential theft. When the plaintiff tried to flee, the defendant pursued him and punched, kicked and beat him with a baseball bat.

The plaintiff went through brain surgery, a nine-month coma and numerous medical interventions and was moved into a long-term care home. His doctor concluded that he would likely need 24-hour care for the rest of his life and would have no prospects of employability. The 18-year-old plaintiff’s mother was also a plaintiff in the case, both as his committee and in her own right, considering that she devoted her time to her son’s care and was terminated from her job as a result.

The defendant gave no defense on the issue of liability and did not appear during the hearing for the quantum assessment. Via default judgment, the court convicted and sentenced him for assault and battery. In the present case, the Supreme Court of British Columbia awarded almost $7 million in total damages, including $393,000 in non-pecuniary damages, $1,367,000 for future loss of income earning capacity and $3,000,000 for cost of future care, among others.

The court granted the plaintiff the rough upper limit of non-pecuniary damages. The court considered that the young plaintiff was prevented from ever enjoying the amenities of a normal life and was forced to permanently rely on others for necessities. The report of the plaintiff’s doctor said that, while he had made progress, he would likely remain fully dependent for his ongoing full-time care needs and daily activities.

The court, however, dismissed the separate claim for aggravated damages, which the plaintiff sought based on the degree and severity of the violence and the injury on the plaintiff’s dignity. The court found that the award for non-pecuniary damages at the rough upper limit already considered the case’s aggravating features, so granting aggravated damages as a separate head of damages would result in a duplication.

On the issue of loss of earning capacity, the court based its assessment on the expected annual income of a full-time roofer, a job in which the plaintiff had experience and demonstrated aptitude and which was in the mid-range of the occupations listed in the vocational report.

For future care costs, the court considered three possible scenarios for the plaintiff, based on a cost of future care report: independent living, sole residency at a care home and residency at a care home with some nights per month spent at his mother’s home. The court preferred the third scenario, which recognized the practical limitations of the plaintiff’s situation while still permitting the promotion of his well-being. The court found the itemized costs in the report to be reasonable and medically justified and opted for the midpoint of the range of costs, in consideration of positive and negative contingencies.

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