“Minor Injury” Settlement Not Set Aside Following Subsequent Discovery of Disc Bulge
In what I believe is the first case of BC’s Civil Resolution Tribunal addressing ‘minor’ injuries under the ever changing ICBC legal landscape reasons for decision were published earlier this month refusing to set aside a ‘minor injury’ settlement after the discovery of a disc bulge.
In the recent case (Naqvi v. ICBC) the applicant was involved in a collision in May, 2019. His doctor diagnosed him as suffering injuries to the right shoulder, right upper back, and left lower back radiating to the left hip with an optimistic prognosis to make full recovery. Believing these were caught by the minor injury regulation the application settled his claim for $6,890 which included non-pecuniary damages at the capped amount for such injuries.
Subsequent to settlement the applicant discovered he had a disc bulge in his spine and argued this new diagnosed injury falls outside of the ‘minor injury’ definition and accordingly sought to set the settlement asise. The CRT refused to allow this arguing a binding settlement was reached that was “not grossly unfair or unconscionable“. In refusing to allow the settlement to be set aside tribunal Vice Chair Andrea Richie provided the following reasons:
20. Naqvi argues the settlement agreement does not mention the new “minor injury” legislation, and therefore is not a proper form for settlement. I disagree. The settlement agreement does not need to state whether an injury is minor or not, and I note the overall settlement is above the applicable “minor injury cap” of $5,500. Therefore, although Mr. Naqvi argues the settlement was made on the mistaken belief his injuries were minor, I find that point is irrelevant to the validity of the settlement agreement. The settlement agreement was negotiated by the parties based on the evidence available at the time. The fact that a more serious injury was later discovered does not mean the settlement agreement is invalid. When an injured person accepts a settlement agreement, there is always the risk that their injury could resolve less quickly than anticipated or involve greater injuries. At the same time, the injury could resolve more quickly. The parties’ acceptance of those risks is part of the compromise in coming to a settlement.
21.Additionally, Mr. Naqvi confirms he does not believe he was deliberately misled or provided wrong information by ICBC at the time of settlement. Based on the above, I find the settlement was fair, just and reasonable, given what was known at the time.
22.At all material times, Mr. Naqvi was employed with ICBC as a Senior Bodily Injury Adjuster (now called a Claims Specialist). Mr. Naqvi argues his employment with ICBC left him at a disadvantage in negotiating as he did not want to seem “argumentative” or as a “problem maker”. However, I also note that Mr. Naqvi’s position made him uniquely positioned in that he was experienced in negotiating these settlement agreements from ICBC’s side. In fact, as a senior ICBC employee, Mr. Naqvi would have been very familiar with ICBC’s settlement processes and form of release. ICBC also argues Mr. Naqvi was well aware of the “minor injury” legislation, given his role. I find Mr. Naqvi knew the potential consequences of settling his claim. Mr. Naqvi also does not explain whether he sought legal advice about the settlement prior to signing it. There is no evidence Mr. Naqvi was under any sort of legal or medical incapacity when he signed the settlement agreement. I am satisfied ICBC did not take advantage of Mr. Naqvi.
23.Based on all of the factors outlined above, I find the bargain was not grossly unfair or unconscionable. I find the settlement agreement is valid, and therefore this dispute must be dismissed.
24.Under section 49 of the CRTA, and the CRT rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. Here, the respondents were successful but there is no evidence they paid any tribunal fees, nor do they claim any dispute-related expenses. Therefore, I make no order for same.
This case is a lesson in showing that it is prudent for injuries to first run their course before settling. Generally it is difficult to set a settlement aside once one is reached with the law only permitting this in limited circumstances.
While keeping limitation periods in mind it is a good idea to let injuries reach a point of maximum medical improvement before settlement.
It is also important to keep in mind that the current ‘minor injury’ damages cap and the CRT’s jurisdiction are subject to a constitutional challenge and parties subject to such claims should enjoy judicial clarity as to whether the arguably discriminatory cap gels with our rights under the Canadian Charter of Rights and Freedoms in the near future.