Life Thrown Off Track By Pain From Car Accident

Posted in: ICBC / INJURY- Apr 20, 2018 Comments Off on Life Thrown Off Track By Pain From Car Accident

A car crash may change a young person’s path in life. Accident injuries may lead to pain, depression and other psychological consequences that become deeply rooted, leaving the victim’s future under a dark cloud.

The BC Supreme Court was faced with such a case recently. A key question was whether the accident injuries, and their consequences, were responsible for the downward spiral in Carla’s life.

Carla (name changed), 19, was hurt in a 2010 car accident. She was a passenger when her boyfriend lost control of his vehicle on a highway early one morning. His car flipped over and landed in a ditch (the court concluded the accident was his fault).

Though wearing her seatbelt, Carla suffered serious injuries, including spinal compression fractures, soft tissue neck and back injuries, and bruising to her head, face and upper body. She also suffered a mild traumatic brain injury or concussion. Her injuries left her in pain, depressed and anxious about her future.

Unfortunately, the pain from her accident injuries over time became chronic, and fuelled her anxiety disorder and depression.

Before the accident, Carla’s dream was to become a nurse, and she still forged ahead toward that goal in the years after. She took a care-aide course and, later, a college nursing degree program. But due to the pain and emotional, cognitive and psychological problems stemming from the accident, she had to withdraw from these physically demanding programs.

Working toward her goals had given her some purpose and hope that she could still have the life she’d aspired to. But having to quit her nursing program in her second term, and giving up that hope, was a devastating psychological setback that sent her spiralling downward.

Carla was seen, evaluated and treated extensively by a number of medical professionals in the years after the accident. To help manage her pain, she was prescribed various medications, some of them addictive. Unfortunately, by the time of trial in 2017, her life was on a downward treadmill, and her prospects for improvement poor. Though she had tried working at other jobs in the years after the accident, it was doubtful whether she would be able to hold a job for very long in future.

The court decided her debilitating pain, depression and anxiety disorder – which aggravated each other in a “vicious cycle” – would not have happened but for the car accident. Said the court: “As a young person moving into adulthood, her life was seriously thrown off-track.” She’d become addicted to narcotic pain medication, yet her pain was still uncontrolled at the time of the court hearing. She was unemployed (and possibly unemployable). And she was socially isolated.

Carla was awarded $200,000 for her loss of life enjoyment as a result of the car accident. In addition, the court awarded over $1,000,000 for loss of past and future earning capacity and cost of future care.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

Better Offer: Can You Side-Step The First Deal?

Posted in: Real Estate- Apr 20, 2018 Comments Off on Better Offer: Can You Side-Step The First Deal?

What if you get a better house offer after you’ve (sort of) accepted the first offer?

Say you got the house in your divorce and list it for sale in a rising market. You receive an offer of $5.8 million and a deposit of $260,000. You’re not experienced in business matters, so your agent adds a subject condition for your benefit, stating the contract is subject to your legal representative/lawyer’s approval of its terms. With this, the purchase contract is agreed on Saturday, and your agent arranges for you to meet with a lawyer the following Monday.

Meantime, another potential buyer also views your house that Saturday and again Sunday. He makes an offer Monday morning for almost $170,000 more than the price you agreed to in the earlier contract; the deposit is higher too, at $400,000.

Later that Monday, you meet with the lawyer. You show him your earlier contract and the later offer. He goes over and compares some of their key terms for you. Both documents are on the printed standard form used in B.C. for residential deals, so the main differences involve some specifics of the two deals (like the obviously higher price and deposit of the later offer, and that for both, you might end up with just the deposit if the deal collapses).

Shortly after, you counter the second offer for a somewhat higher price. After the second buyer accepts your counter-offer, your agent notifies your first buyer that you won’t be removing the subject condition in the earlier contract.

Now things get nasty. Your first buyer doesn’t accept the cancellation, puts a notice on the title to your house so you can’t complete the later contract, and sues. He wants “specific performance” (i.e. a court order that you must go through with your earlier deal with him). You object, saying you didn’t waive the “lawyer approval” condition put into the contract.

Can you escape the earlier deal?

The BC Supreme Court pointed out that when a real estate contract is made subject to the approval of a third party (e.g., a lawyer), you have to act in good faith, and take reasonable steps to complete the contract; good faith is a general “organizing principle” in the performance of any contract. (For example, a buyer can’t just cancel and walk away from a purchase contract that’s subject to their lawyer’s approval, without even going to see a lawyer.)

Here, there was nothing legally wrong with or invalid about the first purchase contract. The subject condition in that contract was only about the terms and conditions of that contract – the seller didn’t even know a second offer would be coming. Her decision to try and cancel the first contract (after waiting for the later offer to be accepted) wasn’t really about her lawyer’s advice, but rather about getting more money.

So the court decided she couldn’t walk away from the earlier contract and had to go through with it.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

Buyer Who Walks Is On Hook For Price Drop

Posted in: Real Estate- Apr 19, 2018 Comments Off on Buyer Who Walks Is On Hook For Price Drop

You think you’ve sold your house. You have a signed agreement (and a deposit). But then the market turns, the value of your home starts to drop, and the buyer doesn’t go through with the purchase. What compensation can you get? That’s the question the sellers brought to court in a recent case.

The buyer had agreed to pay $1,260,000 for a rancher on a large property in Surrey. The purchase contract was signed in May, 2016 (near the height of the Lower Mainland real estate frenzy), likely on the standard form normally used for such residential transactions.
There were no subject conditions in the contract, and the buyer put up a $60,000 deposit. The sale was scheduled to be completed on September 1, 2016. But the buyer simply walked away and did not complete the transaction.

The sellers had bought a replacement property to move into. They sued the buyer for breach of contract and, when the defendant buyer didn’t respond, they got default judgment in their favour. They were awarded the deposit, and additional damages (compensation due to them) to be assessed later. So this court hearing dealt with the full amount of compensation due to the sellers.

The purchase contract effectively said that if the buyer defaulted and didn’t go through with the purchase, the sellers could get the deposit toward compensation and could also look to the buyer for any additional losses they suffered over and above that.

The court heard evidence that, after the contract was signed and especially when the B.C. 15% foreign buyer’s tax came into effect in August, 2016, the real estate market changed and softened. In order to try and mitigate (reduce) their loss, the sellers proactively re-listed their house for sale in mid-September, 2016 at $1,149,000. This was the reduced price recommended by their agent, who actively marketed the property on MLS and otherwise from then on. But it took some five months and several more price reductions before the property was finally resold in February, 2017 for $910,000.

The guiding rule as to the amount of compensation for such a breach of contract is to put the sellers in the same position they would have been in if the contract had been carried out, said the court. So here, walking away from the deal without a valid excuse meant the buyer was on the hook for some $350,000 for the drop in market value from $1,260,000 to $910,000. In addition, the sellers were awarded consequential damages (reimbursement for extra costs they had to pay until the house was resold), such as mortgage interest, property taxes, insurance, gas and hydro for the house, which came to over $10,000.

Bottom line: If a buyer doesn’t go through with a binding house purchase contract in a falling market, they may well be on the hook for the drop in value (when the seller afterwards resells for less) plus other expenses the seller incurred because of the breach.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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