“Outlandish” Uncorroborated Injury Claims Rejected

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

erik-magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.

In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:

9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.

[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.

Muskoka residents launch $900 million suit against province over flood damage

By Keith Leslie

THE CANADIAN PRESS

TORONTO _ Residents, cottage and business owners on some of the biggest lakes in Muskoka are launching a $900-million class-action suit against the Ontario government because of flooding caused by high water levels.

People living on Lakes Muskoka, Lake Joseph and Lake Rosseau say they suffered extensive damage during this year’s spring thaw because of high water and drifting ice that wreaked havoc on docks, boat houses and their properties.

The Ministry of Natural Resources is responsible for controlling water levels in the lakes, and the residents blame poor management and negligence for allowing the levels to become dangerous.

The ministry issued a statement Thursday saying it was “sympathetic” to those who had property damage, but adding that severe weather conditions are out of its control and that the spring melt was earlier and faster than normal this year.

“Over 170 mm of precipitation fell over a very short period of time, combining with high winds and ice flows to cause severe spring flooding,” it said. “We have lowered water levels in ministry dams when appropriate. Lowering water levels may provide limited relief from flooding, (ministry) dams were not designed to be flood control structures and don’t have the capacity to store or hold back flood waters.”

Lawyer Troy Lehman said the extent of the damage is “enormous” but the actual cost of repairs is still unknown, and most residents have not been successful in making insurance claims.

“We picked that number because we don’t know the actual amount,” he said. “Conservative estimates would say property damage could be in the hundreds of millions of dollars, and that’s why that large number was picked, but we will gather that information as people come forward.”

Peter Burgess, the representative plaintiff in the proposed class-action suit, which has not been certified by the courts, said it’s frustrating to suffer widespread property damage and not be able to afford to fix it.

“It’s a terrible feeling to have something crushed by the elements,” he said.

The Burgess family waterfront property on Lake Rosseau was flooded twice in the past few years, and its two-storey boathouse collapsed this spring and could cost up to $700,000 to rebuild.

“Insurance companies don’t insure wharfs or docks due to flooding or ice damage, but they do insure due to wind damage, so I had to build the argument that it was due to all three elements,” said Burgess. “So I still have no money from (the insurance company). They’re throwing some scraps on the table.”

Cassandra Ford, who operates a marina and restaurant in Bala, said she is looking at up to $400,000 to rebuild a damaged boathouse.

“Nobody seems to care,” she said. “They don’t care.”

Ford wants the ministry to explain why there was no flooding for 60 years and then three major floods since 2010.

“Prior to the 2006 Muskoka Watershed Management Plan we had high water but we didn’t have constant flooding,” she said.

In addition to monetary damages, the suit also aims to secure a judge’s order that would force the ministry to address the issue and maintain safe water levels.

canada-press

Review flags concerns about money laundering in Canada’s real estate sector

By Jordan Press

THE CANADIAN PRESS

OTTAWA _ An in-depth review of Canada’s anti-money-laundering efforts has uncovered serious concerns that organized crime is using the country’s hot real estate sector to illegally funnel cash.

The report from the Paris-based Financial Action Task Force makes special note of real estate as an area of the economy with a high risk of illicit activity, one of a few weak spots in what the report calls a comprehensive federal regime to combat money laundering and terrorist financing.

The charitable and life insurance industries are also identified in the report as sectors at risk of providing financial help to terrorists and criminals.

Of particular concern are real estate schemes in which a foreign or domestic criminal provides cash to a local buyer, or more sophisticated schemes where loans and mortgages are combined with lawyers’ trust accounts to move money around quietly.

The Canada Revenue Agency is investigating questionable transactions in the Vancouver real estate market, part of a wider study the federal government is doing into ever-rising housing prices there and in Toronto.

The report released today suggests the risk of criminals using real estate to launder money and proceeds of crime is a cross-country issue and not solely focused on Toronto and Vancouver, It says Quebec is another region where there is a risk of abuse.

Agents told reviewers they saw the risk of money laundering as low, pointing out that they don’t handle cash-only deals  the money usually flows through lawyers, banks or mortgage companies.

The report, however, says financial agencies and agents involved in those transactions sometimes do only a cursory review of information to see if the buyer on paper is linked to a criminal or terrorist group.

Brokerage agents relied on their gut feelings to determine if something seemed suspicious, the report says.

It also says relying on lawyers is problematic because their actions on behalf of a client can’t be probed by law enforcement agencies, as the Supreme Court of Canada has held that those transactions are protected by solicitor-client privilege.

“In light of these professionals’ key gatekeeper role, in particular in high-risk sectors and activities such as real-estate transactions and the formation of corporations and trusts, this constitutes a serious impediment to Canada’s efforts to fight (money laundering),” the report says.

A spokesman for the Canadian Real Estate Association, which represents more than 150,000 agents across the country, said its officials are still reviewing the report.

Pierre Leduc said the association provides training for members with regards to requirements to report suspicious transactions, including in-person and online presentations, forms, checklists and other online learning tools.

Finance Minister Bill Morneau’s office has yet to respond to a request for comment.

The report finds that organized crime poses the biggest money laundering threat in Canada, with terrorist financing posing a smaller risk.

Most of the money flows through legally incorporated companies that conduct little or no business, the report says.

Fintrac, the federal agency tasked with combating money laundering and terrorist financing, says that more than 70 per cent of the money laundering cases and just over half of the terrorist financing cases it has dealt with involved legally incorporated companies.

Between 2008 and 2014, the Canada Revenue Agency did about 5,000 audits on charities, identifying 16 that posed national security concerns, eight of which ended with the agency revoking the group’s charitable status.

canada-press

The world, in reinsurance. Who pays for Fort McMurray?

Excerpted article written by Brad Kading | The Globe and Mail

Fires, floods, earthquakes. Once the realm of nightmares or fiction, worst-case natural disasters are increasingly becoming real-life headlines for Canadians. Even while May’s devastating Fort McMurray inferno remains a fresh memory, climate scientists warn of more frequent flooding and wildfires as rainfall patterns change.

The Alberta fire, estimated to have generated insured losses of $3.6-billion, is now listed as Canada’s costliest natural disaster. That more than doubles the previous record of $1.7-billion in insurable damages set just three years ago, also in Alberta, by catastrophic flooding. Moreover, a terrible earthquake, predicted by geologists as inevitable for British Columbia, could set horrible new records if it occurred near Metro Vancouver. The obvious question is, who pays in the aftermath? The simple answer: Consumers pay insurance premiums, insurance companies pay claims and economic losses that are not insured come out of government and public pockets in other ways. Someone has to pay. But invisible to most Canadians is the role international reinsurers play in absorbing such massive losses.

Reinsurance is essentially insurance for insurance companies. A Canadian insurer that looks at its customer accounts and believes it has too much catastrophe exposure compared with its capital buys reinsurance for that share of the risk.

From that corporate need has evolved a specialty business that sees global reinsurers assuming the risk of Canadian fires and floods, then pooling it with U.S. hurricanes, British floods, European windstorms and earthquakes in New Zealand, Chile and Japan. These are all catastrophes in the making, and to a reinsurance actuary, they have some common elements – such as sudden or not-predictable events, or those that have an unpredictable loss size. By combining them on a reinsurer’s balance sheet, potential losses are spread globally, the risk is diversified and capital can cover catastrophes when they occur.

The larger the loss event, the bigger the reinsurance payout. New York’s World Trade Center tragedy was 60-per-cent reinsured; Louisiana’s Hurricane Katrina 40 per cent. The same holds true for Fort McMurray. According to published reports, many Canadian insurers ceded large portions of their wildfire loss to foreign reinsurers – some say as high as 85 per cent.

According to published reports, insurers have now disclosed a total of $2.57-billion in losses. Of that, reinsurers in Bermuda, Germany, Switzerland and the United States are paying the largest shares, with European companies undertaking nearly half, about 47 per cent. Bermuda comes next, covering nearly a quarter – $556-million in payments – of Canada’s wildfire claims.

Why Bermuda? The mid-Atlantic island is just 54 square kilometres, with a population almost exactly mirroring Fort McMurray’s (about 62,000). While tiny, Bermuda is a sophisticated heavyweight in the world of reinsurance, its market rating third-largest after London and New York. Well regulated financially, with tax information exchange agreements in place with Canada and 90 other countries worldwide, Bermuda is home to 15 of the top 40 global reinsurance corporations and boasts a 45-year track record in its commercial claims-paying ability. Notably, its property-catastrophe reinsurance market is now No. 1.

Reinsurance’s economic benefit to Canadians is clear: lower insurance premiums. By spreading catastrophe risk globally, consumer rates are less affected, as the bulk of capital to pay claims after fires and other tragic events is imported from overseas. In this way, it’s the shareholders of reinsurance companies who suffer the losses – not the customers of Canada’s leading insurers.

Insurance industry struggles with increasing costs of natural disasters

By Ian Bickis

THE CANADIAN PRESS

CALGARY _ Canada’s insurance companies, are grappling with an increase in environmental disasters and say property owners most at risk are likely going to have to pay more.

Craig Stewart, vice-president of federal affairs at the Insurance Bureau of Canada, says the industry sees severe weather as a top priority nationally.

“There are clear trends towards a warming atmosphere that have resulted in more significant losses from flooding… and as we’ve seen recently wildfire,” he said.

The industry is still tallying up the cost of Alberta’s Fort McMurray wildfire, but with claims estimated at $3.6 billion, the costliest natural disaster in Canadian history is already hitting insurers.

Joel Baker, president of MSA Research Inc., says this year will likely go down as the worst in decades for Canada’s general insurance sector, which excludes life insurance.

He said that in the first six months of 2016 Canadian insurers reported a $1.08-billion underwriting loss, compared with a $1.05-billion gain for the first six months of 2015.

Much of those losses will, in turn, be covered by reinsurance companies, which provide insurance for the insurance industry itself. But with a clear trend of increased natural catastrophes, insurance companies are looking for ways to better manage the risk.

Ulrich Kadow, head of Canadian operations at insurer Allianz Global Corporate & Specialty, says the industry is working to improve modelling and catastrophe exposure management to deal with the increased risk and volatility.

“The significance of these fires as a result of climate change is huge,” said Kadow.

“We need to make sure that we are on top of all these trends that evolve and develop.”

He said the industry is responding by looking at adjusting pricing, but hyper competition in the industry means companies have been limited in how much they can increase rates.

Kadow says the insurance industry is also being squeezed by low returns on investment, a key pillar in the industry’s financial health.

“It’s a double whammy,” he said. “On the underwriting side investments have been squeezed, and on the investment side the picture isn’t much rosier, either.”

Stewart says the industry has been adapting to lower rates for years, and can sustain a hit like the Fort McMurray wildfire, but longer term there are concerns.

“The industry’s well equipped to handle events such as Fort Mac. We can absorb it in any given year,” he said.

“It’s the cumulative effect of these events that can take a toll, year after year after year.”

He said partnerships with government at all levels is key to reducing future costs of natural disasters, and that IBC has been pushing the federal government to prioritize a national flood strategy as part of the upcoming national climate strategy.

Property owners also need to learn how to protect themselves, whether it’s through fire-resistant shingles or better planning of greenery around the home, while communities also need to plan more for flood and fire mitigation.

“People need to know what their risk is, and they need to be empowered to protect themselves,” said Stewart.

As natural disasters and costs to the industry increase, he says there won’t necessarily be industry-wide rate increases, but companies will have to adjust premiums when they identify areas of greater risk.

“Generally, homeowners will start to pay out of pocket as climate impacts become less of a future and more of a present danger,” he said.

canada-press

Edited for ILSTV.com

No Negligence Where Customer Trips on Overlapping Mats

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a trip and fall lawsuit where a customer fell on over-lapping mats at a grocery store.

In the recent case (Biason v. Loblaws, Inc) the Plaintiff tripped and fell injuring herself while she walked on overlapping floor mats.  She argued that it was negligent for the store to have these mats overlap each other.  The Court noted that counsel could not point to other cases addressing such a fact pattern but ultimately found there was no negligence.  In dismissing the claim Madam Justice Baker provided the following reasons:

[29]         Mr. Patton testified that he was unaware of any previous incident involving a customer tripping over overlapped mats.  Although there was no direct evidence about the depth of the mats, from the description given, and the appearance of the mats on the recording, they were neither deep nor “plushy”.  The front end of the third mat that overlapped a portion of the rear end of the second mat was not wrinkled or buckled or folded back or lifting up in any unusual fashion.  Part of one mat was simply lying on top of part of another mat.

[30]         There is no evidence that there had been previous accidents due to overlapping mats – the evidence is to the contrary.  There is no evidence that the overlapping of mats was a recognized hazard in the industry.  Other customers had been walking over the mats without incident on the day that Ms. Biason tripped and fell…

[35]         I have read and considered all the other authorities provided by counsel.  Taking the authorities and all of the evidence into account, I have concluded that the plaintiff has failed to establish, on the balance of probabilities, that the placement of the mats in the defendant’s store constituted a failure on the part of the defendant to take reasonable care to ensure that the premises were reasonably safe.  The defendant placed the mats in the entryway to protect customers from a readily apparent and recognizable risk – the risk of slips and fall due to wet floors.  I am of the view that it was not reasonably foreseeable that a customer would fail to lift his or her feet sufficiently while walking to avoid tripping on the edge of one of the mats, even if those mats were slightly overlapping.

[36]         Having found no breach of the standard of care, and therefore no liability on the defendant’s part, Ms. Biason’s action must be dismissed.

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