Lawyers know its bad practice to rely on cases without ‘noting them up’. This means to make sure the cases you’re relying on were not overturned on appeal, overturned by legislation, or otherwise fallen out of favour with more recent judicial precedents. Another way cases can become outdated is simply through the passage of time. Cases dealing with ‘pain and suffering‘ awards need to be brought into current dollars. Below are two quick tips to help you avoid these mistakes in your ICBC settlement negotiations:
- Note Up Your Case
A great free public resource to note-up case-law is Canlii. As previously discussed, Canlii is a free Canadian legal research database. When you look up any given reported case a link appears which lets you find subsequent decisions citing your case. It’s a good idea to do this before relying on a case in settlement negotiations or in Court.
- Adjust for Inflation
It’s important to bring older cases addressing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) up to date.
Since every injury claim is unique its sometimes necessary to go back many years to find comparable cases. There is nothing wrong with this and most of these older cases remain good law. However, the cases become stale and need to be adjusted for inflation. A pain and suffering award of $50,000 in a 1990 case is equal to almost $75,000 in 2011.
A great resource for adjusting old cases for inflation is the Bank of Canada Inflation Calculator.
Investing a few minutes to make sure you’re negotiating with up to date caselaw can help you yield a significantly better result in your ICBC settlement.