ICBC Law

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.

Both collisions were rear-end crashes.  The first occurred in February, 2004, the second in July of the same year.  Fault was admitted by ICBC on behalf of the Defendants in both accidents.  This trial dealt with quantum of damages (value of these injury claims).

The Plaintiff had generally good health before the collisions.   After the collisions she suffered from various symptoms.  The extent of her injuries and their relationship to the crashes was at issue at trial.

The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions.  The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.

The court awarded damages as follows:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.

The Plaintiff was 23 years old at the time of trial.  He was injured in 3 collisions, the first of which occured when he was only 10 years old.

The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).

The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years.  The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.

Damages were awarded as follows:

Non-pecuniary damages                                            $ 75,000

Loss of Earning Capacity                                           $100,000

Cost of Future Care                                                    $  12,650

Special Damages                                                       $    3,570

Past Income Loss                                                       $       698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings.  That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury.  Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.

Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine.  Specifically he noted that: 

[19]            The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms.  There have been few objective physical findings.  However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years.  It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.

The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’

The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome.  The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome.  In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.

The Plaintiff sought damages of over $1.7 Million.  Given the trial judges findings a total of $70,000 in damages was awarded.

The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.  The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.

The Court of Appeal dismissed the appeal.  In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a)  Confronting the Plaintiff

[33]            The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties.  The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70).  The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34]            The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges.  This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada.  In this country, we have an adversarial system, not an inquisitorial one.

[35]            Such a rule would be unworkable with respect to judges in our system.  Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses.  They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36]            The rule in Browne v. Dunn is not suited for application to judges.  The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation.  What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible.  That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37]            In addition, the rule in Browne v. Dunn has not been treated as an absolute rule.  Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence.  This feature of the rule is not adaptable to judges.

[38]            The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations.  The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14).  In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case.  It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25).  Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

Following a 2 day trial using the Fast Track Rule  (Rule 66), reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car accident.

The Plaintiff was injured as a passenger.  The offending motorist admitted fault and the trial focused on damages (lawful compensation) only.

The Plaintiff had a range of complaints following the accident including pain in her neck, right shoulder and low back, and a significant increase in the frequency of her pre-existing migraine headaches.

In assessing a fair award for pain and suffering the court made the following finding:

[24] I accept the plaintiff’s evidence that she was injured in the August 9, 2005 motor vehicle accident.  In this regard, I note that while the physicians who examined the plaintiff also accepted the plaintiff’s assertions, the fact that they did so does not assist the court in making that finding.  Their observations thereafter are of considerable assistance in assessing the possible course of the plaintiff’s recovery, however.  It does appear, taking account of what is before me, that the plaintiff recovered functionally very quickly although she may suffer some minor aches and pains that will occasionally interfere with her activities.

[25] The plaintiff has suffered some moderate interference with her life due to pain and suffering.  The cases advanced as comparables by the parties are of some assistance in locating this case on an appropriate scale.  I assess her damages for pain and suffering and loss of enjoyment of life at $25,000.

The Plaintiff also led evidence that she was able to take advantage of fewer overtime opportunities as a result of her injuries.  For this loss the court awarded $20,000.

The court found that the injuries should continue to improve but may linger for a while longer.  In addressing loss of earning capacity the court awarded $15,000 making the following findings:

She is capable of doing her work and of working considerable overtime.  On the basis of the medical evidence there is good reason to expect that she will fully recover in the next few years, with a modest chance of some limited impairment further into the future.  I think some allowance must be made for the possibility that the plaintiff may occasionally suffer losses into the future that are related to the injuries she has suffered.  I think the evidence suggests that these losses will be incurred, for the most part, in the next few years.  I fix the sum of $15,000 for loss of future earning capacity.

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.

The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ’sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.

The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.

The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.

The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.

The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’

In the end the Court assessed damages as follows:

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.

The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

Do you have questions about this case or an ICBC claim involving mild traumatic brain injury (MTBI) that you would like to discuss with a BC personal injury lawyer? If so click here to arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

Reasons for judgement were released today awarding a Plaintiff just over $100,000 as a result of a 2006 collision which occurred in Vernon, BC.

The Plaintiff was hit from behind when stopped for a red light.  The issue of fault was admitted.  The accident resulted in minimal vehicle damage.  In many ICBC claims defence lawyers try to get the Judge/Jury to focus on the lack of vehicle damage as opposed to the medical evidence.  Here the Court noted that “Although the lack of vehicle damage may be a relevant consideration in considering (the Plaintiff’s) injuries,k it has to be balanced against the evidence of the Plaintiff and the medical evidence.”

The court heard from various medical experts including the Plaintiff’s doctor and 2 physiatrists (physicians specializing in rehabilitation).

The court accepted that the Plaintiff suffered a Whiplash Associated Disorder, cervicogenic headaches, and an onset of pain in previously asymptomatic degenerative changes in her neck.  The court further accepted that these injuries will linger for some time but should continue to improve in the coming years.

The court assessed damages as follows:

Do you have questions about this case or an ICBC claim involving whiplash associated disorder (WAD) or an aggravation of underlying degenerative changes that you would like to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

Reasons for judgement were released today compensating a Plaintiff for injuries and losses sustained in a 2004 car accident.

The Plaintiff was driving her daughter to pre-school when her vehicle was rear-ended. The impact was ‘sudden and relatively severe‘ and caused enough damage to render the Plaintiff’s vehicle a write-off.

The court heard from a variety of medical ‘expert witnesses’ and placed the most weight on the Plaintiff’s GP. The court found that the Plaintiff ‘now has chronic pain with her soft tissue injuries and that pain and discomfort, in varying levels depending on activity level, will continue indefenately.’ The court also found that the Plaintiff suffers from ‘anxiety associated witht he accident’ and that ‘(she) is at risk of premature arthritis in her cervical spine and left shoulder‘.

In awarding $50,000 for the Plaintiff’s non-pecuniary loss (pain and suffering and loss of enjoyment of life) the court noted that:

[14] The injuries have affected the plaintiff’s family relationships. She is not able to participate in normal physical family and recreational activities to the same extent as before the accident. She cannot perform housework or garden to the same extent. She presents as a perfectionist and is clearly bothered by these restrictions on activities that she enjoys and takes pride in.

[15] (The Plaintiff) is also anxious and, perhaps, somewhat depressed; her relationship with her husband has been adversely affected, and she is naturally concerned and upset that her children now turn more naturally to their father for physical support and comfort. In addition to the ongoing pain and discomfort that restricts general activities, these factors also affect enjoyment of life. I take them into account in determining a fit award for non-pecuniary loss.

The most interesting part of this judgement for me was the court’s discussion of loss of earning capacity. Here the court found that the Plaintiff does have permanent injuries but that these will have ‘slight, if any, actual impact on her future earnings‘.

What interested me was the courts comments trying to reconcile to seemingly opposed lines of authority from the BC Court of Appeal addressing loss of future earnings. When one asks for an award for ‘loss of future income’ or ‘loss of earning capacity’ one has to prove this loss. There are various ways of doing this at trial.

Here the Plaintiff advanced a claim of loss of earning capacity using the ‘capital asset approach‘ as set out by our Court of Appeal in Pallos v. ICBC. The Defence lawyer argued that a subsequent case (Steward v. Berezan) overruled the law as set out in Pallos.

After listening to this debate the court noted that:

44] With respect, it is not clear, as I understand Steward, how one gets to the capital asset approach without first proving a substantial possibility of future income loss in relation to the plaintiff’s position at the time of trial. I cannot reconcile that approach with the factors first listed in Brown, later summarized in Palmer, and finally approved in Pallos in the passages set out earlier in my reasons.

[45] It would be helpful if the Court of Appeal has an opportunity to address these issues fully. I observe that the Court of Appeal since held in one decision that Steward turned on its facts and did not create any new principle of law. The court also affirmed Parypa in the same decision. See Djukic v. Hahn, 2007 BCCA 203, at paras. 14 and 15.

Here the court held that “there is no reference in Steward to Pallos. Steward, in my view, does not over rule Pallos‘.

Mr. Justice Macaulay went on to reconcile the apparent conflict between these cases by concluding that Steward should be limited to its own ‘narrow factual circumstances‘ and awarding the Plaintiff damages based on the less stingent ‘capital asset approach‘.

Do you have questions about this case or about an ICBC injury claim involving future wage loss? If so please click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)

In reasons for judgement released today, Mr. Justice Bernard of the BC Supreme Court awarded a Plaintiff just over $200,000 in compensation for losses as a result of a 2005 BC car accident.

The accident involved a left-hand turning defendant who failed to see the Plaintiff’s vehicle. The result was a significant, near head on collision. Fault was admitted leaving only the issue of quantum of damages to be decided at trial.

The court’s key findings of fact were made at paragraphs 34-35 of the judgement where it was held that the Plaintiff suffered from debilitating headaches as a result of the BC car crash, that the headaches continue to plague him and that the source of these headaches is the neck injury the Plaintiff suffered in the crash. The court also found that these injuries where likely to plague the Plaintiff for 3-5 years following the trial.

The Plaintiff was a young man starting out in a career in the entertainment industry. The court accepted that the injuries took away his ability to take full advantage of various opportunities that were open to him in his career and this ‘loss of oportunity’ will continue into the future as a result of the on-going injuries.

In the end the court assessed damages as follows:

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

This case is interesting for the court’s comments on the use of the various doctor’s clinical records at trial. As any ICBC claims lawyer knows, Plaintiff’s in personal injury claims are often exposed to hard cross-examinations based on previously recorded statements contained in medical records.

When you go to the doctor he/she usually notes your complaints. These ‘clinical notes’ are often put to use by ICBC lawyers to cross examine a Plaintiff’s testimony discussing the extent of injuries and symptoms. Here, the court found that the Plaintiff held up to cross examination very well and made some very practical comments about the reliability of clinical records, namely:

[35] I accept (the Plaintiff’s) evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

Do you have questions about this case or an ICBC claim involving chronic headaches that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

Reasons for judgement were released today awarding a Plaintiff just under $150,000 damages in total as a result of two ICBC claims.

One thing I’ve been meaning to point out for some time on this blog is that in BC tort claims (which include car accident claims), ICBC is almost never named as a party to the lawsuit. There are a few circumstances when it is appropriate to name ICBC directly but these are few and far between. It is a safe bet that if a case goes to court in BC involving a BC car accident it is more often than not an ICBC claim. I know that this case involves ICBC (despite them not being named as a party) because the defence lawyer is an ICBC in house lawyer from Kamloops. When you are looking at precedents to help you value your ICBC case to determine what a fair settlement, you should know that most any BC car accident case serves as a valuable precedent because even if ICBC is not mentioned or is not the insurer in any given case, each BC case serves as an example of how our courts value injuries in BC.

Getting back to the case - here the Plaintiff was injured in 2 car accidents for which others were at fault. The first in 1998, the second in 2004. In the first accident the Plaintiff was a passenger in a pick-up truck involved in a roll-over accident. In the second the Plaintiff was a passenger in a vehicle that was T-boned. Both crashes were significant and resulted in injuries.

This case is a good example of how complex chronic pain ICBC claims can be when they head to trial. In this case the court heard from over 10 lay witnesses who could comment on their observations of the Plaintiff’s injuries (or lack thereof by the witnesses called by the ICBC defence lawyer). The court also had access to medical evidence from over 6 doctors and other specialists.

The Plaintiff presented a case of chronic pain affecting every single aspect of her life. The defence case was one of injury which significantly improved after 2 years.

The court concluded that, although the Plaintiff ‘exaggerated her claim to some extent‘ she ‘has suffered to some degree from headaches and chronic pain over the past 10 years, and will continue to suffer these in the future, over some limited period of time. Some of her complaints are psychosomatic and she may benefit from counselling‘.

The court awarded damages as follows:

The plaintiff shall recover damages as follows:

- general damages: $75,000

- past income loss: $680

- cost of future care: $4,271.72

- diminished future earning capacity: $60,000

- special damages: $7,753.60

In doing so the court recited some good quotes from previous BC judgements addressing the assessment of damages. These precedents are worth knowing for anyone advancing and ICBC injury claim. Particularly the court referred to a great BC Court of Appeal case summarizing the principles used in the assessment of damages in personal injuries, the key quote being:

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away. Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence … [The factors] include:

[1] whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less marketable or attractive as an employee to potential employers;

[3] whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

[4] whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

The court then did a great job of summarizing the two approaches when addressing future wage loss and ICBC claims, summarizing the law as follows:

There are two methods of assessment under this head of damages, although both have the same outcome. The court can either use the “real possibility” approach, and compare the plaintiff’s likely earnings, had she not been injured, with the income she likely now earns, factoring in the positive and negative contingencies; or the court can value the loss of earning capacity as a capital asset (as Finch J.A., as he then was, suggested in Pallos v. ICBC (1995), 100 B.C.L.R. (2d) 260 (C.A.)).

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.

The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.

The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’

The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.

As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.

No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.

The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.

The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:

[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.

The court awarded $80,000 for ‘general damages’ (pain and suffering).

The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.

This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.

In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.

Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“

This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.

The court summarized the law of ‘failure to mitigate’ as follows:

[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).

The court rejected ICBC’s failure to mitigate arguments.

This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.

Do you have questions about this case or an ICBC case involving future wage loss or loss of overtime opportunities that you wish to discuss with a BC personal injury lawyer? If so click here to arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)