02 Feb Court of Appeal Success for Acheson Sweeney Foley Sahota

Sean Sweeney, a partner at our firm, represented a licenced practical nurse that had been in a motor vehicle accident.  At trial, Mr. Sweeney was successful and the Plaintiff was awarded a very favourable amount in damages. (Thomasson v. Moeller, 2014 BCSC 2465)

ICBC appealed the Trial Judge’s decision.  On January 15, 2016, we learned that the Court of Appeal had rejected ICBC’s arguments and dismissed their appeal, thereby upholding the judgement at trial. (Thomasson v. Moeller, 2016 BCCA 14)

At trial, the Judge awarded the Plaintiff damages as follows:

General Damages:           $95,000

Past Income Loss:            $113,137

Loss of Future Income:  $324,000

Cost of Future Care:       $57,950

Special Damages:             $20,794

TOTAL AWARD:            $610,881


At the Court of Appeal, the lawyer for ICBC argued the Trial Judge erred, for three reasons:

  1. Failing to draw an adverse inference against the Plaintiff because one of her treating doctors did not testify at trial.
  2. Failing to account for the Plaintiff’s lack of cognitive behavioural therapy.
  3. Failing to take into account various negative contingencies for loss of future income.

The Court of Appeal rejected all three arguments.

In rejecting the first argument, the Court of Appeal noted that either party could have required the doctor to testify.  In addition, the Defence lawyer objected to the admissibility of the doctor’s consultation report.

In rejecting the second argument, the Court of Appeal noted that the evidence showed that the Plaintiff had sought many treatments and did her best to recover.

In rejecting the third argument, the Court of Appeal noted that from the Trial Judge’s reasoning, it was clear he was “alive to the factors that affected the award”.

In conclusion, the Court of Appeal unanimously dismissed the Appeal by ICBC.  As a result, the Plaintiff is entitled to the damages awarded by the Trial Judge.

Winning at the Court of Appeal takes expertise and hard work.  At Acheson Sweeney Foley Sahota, we have that experience and we will put our team behind you.