When taking an ICBC or other BC personal injury claim to trial in the Supreme Court it is vital to understand the financial consequences that can be triggered when formal settlement offers are made. I have written dozens of articles on this topic and you can access these here.
Below is a brief video discussing some of the key factors you need to consider when reviewing ICBC’s formal settlement offer under the BC Supreme Court Rules and further the issues you should consider when making your own formal settlement offer. I hope this information is of assistance.
Tag: icbc injury claims lawyer
When taking an ICBC or other BC personal injury claim to trial in the Supreme Court it is vital to understand the financial consequences that can be triggered when formal settlement offers are made. I have written dozens of articles on this topic and you can access these here.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash. The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry. The matter was set for Jury Trial. As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:
9 The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent. In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”. He does not suggest that the defendant is misusing the process in withholding consent in this case. The plaintiff relies on Bell v. Wood,  1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn.,  B.C.J. No. 2477 (C.A.), for the proposition set out above.
10 With respect, I do not agree that the principle set out applies here. In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6). The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question. MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.
11 I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more. Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum: Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc.,  O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.). It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d  2 S.C.R. 561.
12 There is no gap in the present circumstances. Rule 68 expressly requires the consent of the defendant. It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.
This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010. (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).
Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act. It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.
A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance. In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs. (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).
Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.
Section 24 of the Health Care Costs Recovery Act holds in part that:
(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….
(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to
(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,
So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“. If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced. Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.
Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.
If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.
For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”
It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘. So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation. Clear as mud folks?
I’ve written about this topic before and below I reproduce my previous post on Injury Lawyers working both sides of the fence. I’m doing this because I have been approached by a number of people who recently found out that their lawyer also acts on ICBC’s behalf in other Injury Claims. These individuals apparently were not told this when they first retained their lawyers and their displeasure in learning this after the fact is understandable.
Before reproducing my previous post, however, I’d like to share my usual advice when people are confronted with this situation. If you hired a capable lawyer who is doing a good job for you try to work things out. The reason being is that if you hire a second lawyer you will have to pay a second lawyer. If the lawyer’s failure to disclose this potential conflict of interest is a deal breaker then so be it, however, if it isn’t and the lawyer is doing an otherwise decent job save yourself the extra legal fees that come with hiring a new lawyer. While I certainly don’t condone this lack of candor (and in case you’re wondering, No I don’t act for ICBC) it is important to keep focused on the big picture which is whether your lawyer is doing a good job.
With that out of the way, here is my previous post on this issue:
You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasonably so, that the lawyer is acting for you and not ICBC, right? Not always…
Many people see lawyers working both sides of the fence as an inherent conflict of interest. They want their lawyer to represent injured people only, not insurance companies. Others like the idea that their lawyer also represents ICBC sometimes because perhaps such a lawyer has better insight into the defence tactics used by ICBC.
The problem, and the reason why I write this post, is that sometimes the potential conflict of interest is much worse than simply having a lawyer who works both sides of the fence. It is a problem of a lack of informed consent.
ICBC has contracted with many law-firms in BC for services in the defence of motor vehicle accident claims. ICBC requires some of these firms to sign an agreement called the Strategic Alliance Agreement (SAA).
Under the SAA, law firms whose lawyers are retained to act for ICBC are not permitted, when representing a plaintiff on another file, to sue ICBC for bad faith or to seek punitive, aggravated or exemplary damages against ICBC.
Specifically, the SAA states that “ICBC may impose penalties against the firm…..(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insureds…”
Also, that “members of the legal firms team will not directly or indirectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.”
What a conflict of interest!
The Law Society of BC (the institution that governs lawyers in BC) has held that it is ok for a lawyer who represents ICBC and who is bound by the terms of the SAA to also act against ICBC in another claim. HOWEVER, clients need to be advised about this potential conflict of interest. Sepcifcially, “A lawyer (bound by the SAA) may properly act against ICBC for clients whose cases fall outside of the restrictions. However, a lawyer acting in these circumstancesMUST ADVISE THESE CLIENTS OF THE LAWYER’S RELATIONSHIP WITH ICBC AND THE IMLICATIONS OF THE RESTRICTIONS THE LAWYER IS UNDER.
It is all about informed consent. There is nothing wrong in hiring a lawyer to represent you who has signed the SAA but you are entitled to know about these restrictions. If you know about these restrictions you may not want to hire such a lawyer and instead retain an icbc claims lawyer who is not bound by any contractual restrictions with ICBC. Ask your lawyer if he signed the SAA, you may be surprised by the answer.
If your lawyer signed the SAA and did not tell you this up front, you were deprived of an opportunity to make an informed decision. If this occurred you may want to ask yourself why your lawyer kept this information from you…?
Reasons for judgement were released today by the BC Supreme Court, New Westinster Registry (Lehtonen v. Johnston), awarding a Plaintiff just over $60,000 in total damages as a result of a 2005 BC Car Crash.
The car crash was a rear-end collision. The issue of liability (fault) was admitted and the trial focused on quantum of damages (value of the Plaintiff’s injuries).
The accident was found to be a “very minor” one and appears to fit ICBC’s Low Velocity Impact program as the Plaintiff’s vehicle sustained only $780 in damages. Notwithstanding the minor amount of vehicle damage the Plaintiff alleged she suffered from serious injuries including a right hip misalignment.
Madam Justice Baker found that many of the Plaintiff’s complaints were not caused from the crash, however, despite the minor nature of this crash the Court found that the Plaintiff did suffer various injuries. In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Madam Justice Baker summarized the accident related injuries as follows:
 Having considered the evidence as a whole, with particular reference to the medical opinion evidence, I conclude that Ms. Lehtonen sustained a mild injury to the soft tissues of her neck and upper back and a mild to moderate injury to the soft tissues of her lower back as a result of the motor vehicle accident on July 30, 2005.
 While the injuries caused discomfort, Ms. Lehtonen did not lose or quickly recovered full range of motion in the affected areas. The neck and upper back symptoms improved significantly within the first six weeks after the accident, although the symptoms recurred from time to time, exacerbated by physical exertion. The lower back symptoms caused by the accident persisted for about a year but after the first several months have not been proved to be disabling. Ms. Lehtonen testified that her physical injuries improved steadily over the first six months after the accident and that she did not have an exacerbation of her anxiety or depression related to the accident during that period…
 I accept that Ms. Lehtonen continues to have a subjective perception of a variety of symptoms, but I consider it more probable than not that the symptoms she has experienced from the second half of 2006 to present are not caused by the relatively mild soft tissue injuries resulting from the motor vehicle accident and are the result of a complex interplay of social, psychological and emotional factors unrelated to the motor vehicle accident; and fibromyalgia…
 I am satisfied that the discomfort from Ms. Lehtonen’s injuries likely did contribute to Ms. Lehtonen’s pre-existing depression and anxiety, although she denied this during the first six months post-accident. I am also satisfied, however, that Ms. Lehtonen would have had depression even if the accident had not happened, and that any exacerbation of her mental health problems was temporary and minor. The depression is, in my view, a chronic condition, that waxes and wanes….
 I am satisfied that Ms. Lehtonen had recovered from her physical injuries within a year following the accident. I accept that after that time she has continued to experience episodes of lower back discomfort from time to time. However, her experience of other symptoms after that date is more probably caused by her complex pre-existing and ongoing psychiatric condition; in particular, depression and anxiety, exacerbated by adverse reactions to and, at times, abuse of medications prescribed to treat the depression and anxiety. I also conclude that Ms. Lehtonen’s later and current subjective symptoms of soft tissue and joint pain are more probably the result of Ms. Lehtonen’s fibromyalgia than any sequelae of the motor vehicle accident injuries…
 As Chief Justice McEachern stated in Price v. Kostryba,  B.C.J. No. 1518:
I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.
 I might add that the same caution must be exercised when a plaintiff’s recovery not only deviates significantly from the normal course of recovery, but where a plaintiff develops new, different, unusual and more serious subjective complaints long after the event said to be the cause of those complaints.
 In saying this, I have not concluded that Ms. Lehtonen has fabricated these symptoms. I accept that she subjectively perceives these things to be true. I do not consider her perception of these symptoms to be reliable, however. I consider it more probable than not that they are subjective physical manifestations of a complex interplay of emotional, physical and psychological factors unrelated to the motor vehicle accident. Ms. Lehtonen’s statement to Dr. Riar that even the pain from a mosquito bite persists for months indicates that while these symptoms are real to her, they cannot be accepted on any objective evaluation.
 I am not persuaded that any symptoms that Ms. Lehtonen continued to experience subjectively more than 12 months after the accident, except for episodic and non-disabling muscle tightness and discomfort in her lower back, were caused by the motor vehicle accident.
The law of ‘causation’ was discussed extensively in reasons for judgment released today by the BC Court of Appeal.
Today’s case (Chambers v. Goertz) involved the appeal of the trial judge’s findings of liability. At trial the court found a taxi driver partially responsible for a crash for leaving his high-beams on which made it difficult for another motorist to see various Plaintiffs crossing a street. The other motorist then struck the Plaintiffs causing injuries. (Click here to read my post on the trial judgment).
The taxi driver appealed this finding arguing that “the trial judge erred in law in finding that his conduct was a ‘contributing cause’ of the plaintiffs injuries“.
This appeal was dismissed and the trial judgment was upheld. In dismissing the Appeal the BC Court of Appeal discussed the law of Causation in personal injury actions, specifically what the law requires for there to be a compensable relationship between the wrong act and injury to the victim.
The Court summarized this area of law as follows:
 The Supreme Court’s other use of “material contribution” is seen in Athey v. Leonati,  3 S.C.R. 458, 140 D.L.R. (4th) 235,  1 W.W.R. 97, where Major J., writing for the Court, held in the following passage that causation will be established if it is shown that the defendant’s negligence “materially contributed” to the occurrence of the plaintiff’s injury:
The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education,  2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw,  1 All E.R. 615 (H.L.);McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske(1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d  2 S.C.R. 979.
 It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”. As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury.
[Emphasis in original]
 As this passage illustrates, every injury has multiple necessary or “but for” factual causes. The function of tort law is to identify those for which the defendant should be held responsible. Thus, in Snell v. Farrell,  2 S.C.R. 311, 72 D.L.R. (4th), 4 C.C.L.T. (2d) 229, Sopinka J., writing for the Court, said, at 326,
Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.
 For purposes of determining whether a breach of duty was a “but for” cause of particular harm, there are no degrees of causation – specific conduct was either necessary for the harm to occur or it was not. However, not every cause necessary for the harm to occur can reasonably be considered a candidate for liability. For example, in this case, the accident would not have occurred but for the taxi company dispatcher’s sending Mr. Ahmad to respond to Ms. McDonald’s call, but no one would suggest that the dispatcher should be found liable for what happened. Therefore the law takes cognizance only of those causes that play a significant role in bringing about the outcome.
 This concept has been expressed in different ways. As I have noted, in Athey v. Leonati, the Court said at para. 15 that “causation is established where the defendant’s negligence ‘materially contributed’ to the occurrence of the injury”, and that a “material contribution” is one that “falls outside the de minimis range”. To similar effect the Court said, inSnell v. Farrell, at 327, that proof of causation requires “a substantial connection between the injury and the defendant’s conduct”. “Substantial connection” was also used to describe this idea in R. v. Goldhart,  2 S.C.R. 463 at 480, 136 D.L.R. (4th) 502, 107 C.C.C. (3d) 481, where the Court said,
The happening of an event can be traced to a whole range of causes along a spectrum of diminishing connections to the event. The common law of torts has grappled with the problem of causation. In order to inject some degree of restraint on the potential reach of causation, the concepts of proximate cause and remoteness were developed. These concepts place limits on the extent of liability in order to implement the sound policy of the law that there exist a substantial connection between the tortious conduct and the injury for which compensation is claimed. …
 Clearly, the “material contribution” test discussed in Resurfice Corp. v. Hanke has nothing to do with the circumstances of this case. Here, it was not impossible for the plaintiffs to prove causation. Rather, whether the breaches of duty of the parties played legally significant causal roles in the outcome was in each case a question of fact to be answered by rational inference drawn in the usual way from the evidence. Causation is essentially “a practical question of fact which can best be answered by ordinary common sense”: Snell v. Farrell at 328, citing Alphacell Ltd. v. Woodward,  2 All E.R. 475 at 490 (per Lord Salmon).
 It was this conventional “but for” test of causation that the trial judge applied when she held that Mr. Ahmad’s breach of duty was a “contributing cause” of the accident and that he was therefore liable. Her use of the phrase “contributing cause” signifies that she found as a fact that Mr. Ahmad’s conduct played an important enough role in the combination of events necessary for this occurrence to fix him with liability for the consequences. This was the correct approach in the circumstances and I would reject the submission that she erred in adopting it.
Reasons for judgment were released Friday awarding a Plaintiff just over $69,000 in total damages for injuries and losses sustained as a result of a 2006 BC Car Crash.
In Friday’s case (Dermody v. Gassier) the Plaintiff was injured when his vehicle was rear-ended in South Surrey. Fault was admitted leaving the court to deal with the sole issue of damages (value of the claim).
Mr. Justice Williams found that while the Plaintiff “embellished his description of the way things were before the accident” the Plaintiff nonetheless was injured and had a pre-existing condition worsened as a consequence of this collision.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Williams summarized the Plaintiff’s injuries as follows:
 The plaintiff sustained soft tissue injuries in the motor vehicle accident. Some of them were relatively transitory in nature; others were more serious and he says they have continued to impact him in a significant way.
 The bruising and such injury abated within a short period of time, that is, within two or three weeks. The headaches continued, albeit on a diminished basis, for a period of time in the order of 12 months. The neck pain was initially a serious problem but I conclude resolved substantially within 12 to 16 months. The driving apprehension, again, resolved within a fairly short period of time and did not meaningfully impact in any long-term way upon the plaintiff.
 There is the matter of the sensation loss in the plaintiff’s feet. None of the medical experts have been able to understand what causes that, and Dr. Sovio was quite sceptical of it. Nevertheless, there appears to be no reason to find that it is not an actual condition; its onset was concurrent with the accident. I, therefore, find that it is a consequence, albeit a relatively minor one, of the incident and that it is a continuing condition.
 The most serious and sustained injury was that to the plaintiff’s back. I accept that it caused him significant pain and discomfort. Based on the medical evidence, I accept as well that there will be some residual back pain going forward….
 To clarify, I find that, at the time of the motor vehicle accident, the plaintiff’s back condition was not asymptomatic. He was having back pain with certain attendant limitations. Whether that was from the incidents at the courier job, whether it was because of degenerative conditions, or whether it was some combination, I am not able to say.
 However, I am satisfied that his back was symptomatic at the time of the accident, and, in accordance with the crumbling skull principle, he is only entitled to recover damages that reflect the difference between his post-accident condition and his pre-accident condition….
I conclude that there were weaknesses in this plaintiff’s pre-accident condition that were not symptomatic at the time of the accident injury, but which would have the effect of making the plaintiff likely to experience greater consequences from the insult of the accident. Injuries that result where such a situation is present are compensable…
 On the particular facts of the matter at hand, it is my conclusion that a fit and appropriate award of non-pecuniary damages in this case is $35,000.
In addition to the discussion addressing the award for non-pecuniary damages, this case contains a useful discussion of the “thin skull” and “crumbling skull” legal principles which is worth reviewing for anyone interested in how BC courts deal with pre-existing conditions and their interplay with traumatic injuries in BC tort claims.
Reasons for judgement were released today (Cimino v. Kwit) by the BC Supreme Court, New Westminster Registry, awarding damages for injuries and loss as a result of a 2006 BC rear end car crash.
One of the main issues at trial was whether the Plaintiff suffered from Thoracic Outlet Syndrome (TOS) as a result of the crash. Madam Justice Dillon found that the Plaintiff indeed suffered a traumatic TOS as a result of this crash and in assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) summarized the Plaintiff’s injuries and effects on her life as follows:
 I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand…
 In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.
 Non-pecuniary damages are awarded in the amount of $85,000.
I’ve written about this before and reasons for judgement were released today by the BC Supreme Court demonstrating this principle in action.
In today’s case (Latuszek v. Bel-Air Taxi 1992 Ltd.) the Plaintiff was involved in a serious intersection crash in the lower mainland. The Defendant died in the collision and the Plaintiff suffered serious injuries.
These injuries included Depression, PTSD and Chronic Pain. The Court valued the non-pecuniary damages (pain and suffering) for these injuries at $100,000 but then reduced the award by $40,000 due to the plaintiff’s failure to mitigate.
Madam Justice Stromberg-Stein summarized and applied the law as follows:
 Prior to setting non-pecuniary damages, I will address the duty to mitigate.
 There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended. Because of the nature of the plaintiff’s work, as a professional driver transporting fuel, he has limited his medication to Tylenol Extra Strength or Tylenol 8 Hour. Dr. Jaworski recommended exercises in the pool and gym and brisk walking. Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking. Dr. Jaworski suggested that brisk walking may be contraindicated now that he knows that Mr. Latuszek has a torn medial meniscus. Mr. Latuszek does very little regular exercise of any kind, except once or twice a week. He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist. He has not taken holidays in the past two years to try the anti?depressant medication, yet he understands that such medication as well as exercise, may improve, if not cure, his symptoms. The plaintiff has not prioritized his recovery.
 In light of the authorities presented by the parties, I conclude that general damages, having regard to the injuries suffered by Mr. Latuszek and the continued problems in that regard, including depression, PTSD, and chronic pain, should be set at $100,000. There will be a reduction of $40,000 for failure to mitigate. Therefore, I award $60,000 as general damages.
Reasons for judgement were released this week by the BC Supreme Court (Atwater v. Reese) awarding a Plaintiff just over $63,000 in total damages as a result of a 2006 motor vehicle collision.
The Plaintiff was a pedestrian who sustained injuries when struck by a car. In my experience ICBC often denies liability in these circumstances with a hope of having the court find the pedestrian at least partially at fault for not keeping a proper lookout. In this case the ICBC Defence Lawyer argued that while the motorist was at fault the Pedestrian was contributorily negligent. The first part of the judgement deals with this allegation and in finding the driver 100% responsible Mr. Justice Macaulay stated as follows:
 I do not accept that the plaintiff was negligent in failing to watch the car as she walked in front of it. Nor do I accept that she could have avoided the accelerating car if she had been watching. Once in front of the car, the pedestrians were within a foot or so of the car. There is no evidence to support the contention that the plaintiff, who was walking ahead of her sister, could have avoided the impact in the circumstances.
 The impact occurred because the defendant was going through the motions of driving without actually paying any attention to what was there by way of pedestrian hazard. I find that the defendant is entirely responsible for the accident.
In assessing the Plaintiff’s non-pecuniary damages at $50,000, Mr. Justice Macaulay made the following findings with respect to her injuries and prognosis:
 I am satisfied that the plaintiff suffers from chronic pain but I share the view of the various professionals that her condition is still amenable to improvement provided she increases her tolerance for recreational activity. She gave up too easily and must try harder so that she can avoid the physical and emotional downward spiral associated with inactivity. I am also, however, satisfied that the plaintiff’s pain experience is real and not otherwise subject to conscious psychological control.
 There is, accordingly, a risk that the pain will continue albeit, hopefully, at a lesser level with appropriate rehabilitation. I do not expect her general pain level to increase nor is the plaintiff at risk of harming herself by increasing her activity level.
 To the plaintiff’s credit, she missed minimal time from work after the accident. This may have unwittingly contributed to her slow recovery and certainly affected her ability to participate in non-work activities. She now has moved to more sedentary office work and is not waitressing as much. The continuing waitressing she does now is of a lighter variety than before. These changes should help over time, as well.
 In my view, the plaintiff sustained a lower moderate soft tissue injury that has resulted in chronic pain and mild anxiety. She is capable of achieving greater recovery than she has to date in spite of the time that has passed since the accident.
When trying to value your Non-Pecuniary Damages (pain and suffering) in an ICBC Injury Claim it is important to find cases with similar injuries and a similar prognosis to help establish a range of potential damages. I intend to keep reporting non-pecuniary damages highlights in ICBC Injury Claims and look forward to growing this database. As always, any feedback from my readers is welcome!