Tag: new westminster ICBC lawyer

Rule 18-A and Your ICBC Injury Case

One of the tools in a BC Trial Lawyers arsenal is BC Supreme Court Rule 18-A.
Rule 18-A permits claims to proceed to court via ‘summary trial’.   In summary trials no live witnesses are called, instead the evidence is put before the Judge by way of affidavit evidence.  From there the lawyers make their submissions and a ruling is made.  By this method the time, and therefore the cost, of trial can be cut down significantly.  
Rule 18-A is, however,  not without its shortcomings.  Without live witnesses taking the stand and getting faced down by a judge or jury it is difficult to weigh credibility.  Where there are 2 different sides to the story and credibility plays a central role Rule 18-A is usually not an appropriate way to proceed to trial.
In personal injury litigation the credibility of the Plaintiff is usually a key issue at trial and for this reason Rule 18-A is rarely used.  That said, this rule can be effective for certain ICBC and other personal injury claims and reasons for judgement were released today by the New Westminster Registry of the BC Supreme Court illustrating this fact.
In today’s case (Smith v. Bhangu) the Plaintiff was injured when she was 14 years old in a BC Car Crash.  The issue of fault was admitted.  This left the issue of quantum of damages (value of the ICBC case) to be decided by the trial judge.
Both lawyers agreed that Rule 18-A was appropriate for this case.  The Plaintiff;s MRI showed a herniated lumbosacral disc injury.  There was no dispute that the Plaintiff suffered from this condition, rather the key issue was whether the Plaintiff’s herniated lumbrosacral disc was related to the car accident.  In agreeing that it was, Mr. Justice Grist made the following findings:

[21]            I am satisfied that the evidence provides, on a balance of probabilities, a causal link between the motor vehicle collision and the lower back condition. I accept the Plaintiff’s evidence that the lower back complaints presented after a period of weeks or months from the motor vehicle collision and that there were no prior or subsequent events causing or contributing to the condition. Further, I accept that following the initial visit to the doctor, she did not present these continuing complaints for medical treatment until lower back spasms developed in 2004 and 2005. I also note Dr. Hershler’s comment that, based on the history and his physical examination, both the neck and lower back symptoms were referable to the motor vehicle collision.

[22]            The upper back condition continues to be symptomatic from time to time, but as in many cases, has shown improvement, and the overall effect of the assessments in the medical reports is an expectation of further progress.

[23]            The lower back condition, however, is more of a problem. The MRI shows a herniated lumbrosacral disk which continues to cause episodes of back pain, sometimes debilitating to the point of prompting attendance at an Emergency Ward. I accept that at age 14, this was not likely a degenerative condition and, as I have previously indicated, on the evidence, is most likely attributable to the collision.

General damages (money for pain and suffering and loss of enjoyment of life) were assessed at $65,000 and a further $80,000 was awarded for the Plaintiff’s diminished earning capacity to reflect the fact that her chronic condition will likely effect her vocationally over her lifetime.
What is remarkable about this case is that the trial took only one day.  Often times when ICBC Claims with serious injuries proceed to trial the process takes numerous days or even weeks.  Rule 18-A permitted this case to be adjudicated with one day of court time with costs savings to both parties.
While Rule 18-A is inaproppriate for many personal injury claims, this case shows that it can be used effectively in certain circumstances.  When prosecuting an ICBC injury claim this rule should not be automatically brushed aside and should be considered in appropriate circumstances.

More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Runghen v. Elkhalil) awarding a Plaintiff just over $147,000 in total damages as a result of injuries and damages sustained in a BC car crash.
The collision occurred in 2004 when the Plaintiff’s vehicle was rear-ended.  The issue of fault was admitted leaving only an assessment of damages at issue at trial.
In awarding $40,000 for pain and suffering (non-pecuniary damages) Madam Justice Fenlon made the following findings with respect to the Plaintiff’s injuries:
[16]            Based on the evidence of the experts, which is largely consistent, I find that Ms. Runghen suffered mild soft tissue injuries to her cervical and lumbar spine as a result of the accident; I further find that due to those injuries, she has headaches and chronic pain that has affected her ability to function both at home and at work.  I also find that Ms. Runghen’s pain and related incapacity are likely to markedly improve once an appropriate treatment plan is put in place.
Madam Justice Fenlon engaged in a thoughful discussion at paragraphs 17-34 of the judgement which is worth reviewing for anyone ingterested in seeing some of the factors courts take into consideration when valuing pain and suffering in ICBC soft tissue injury claims.
The balance of the judgement deals largely with claims for past wage loss and diminished earning capacity.   Awards were made under both of these heads of damages.  The court found that the Plaintiff’s ability to work was diminished as a result of chronic pain and that this would likely continue for at least some time after the trial.  In awarding $35,000 for diminished earning capacity the court engaged in the following analysis:

[50]            As noted earlier in these reasons, I accept that the chronic pain experienced by Ms. Runghen to date has been a limiting factor in her ability to take on longer hours at work.  I expect that limitation will continue to some extent over the next year, as she engages in a rehabilitation exercise program.  After that time, it is probable that she will be able to increase the amount of time she works to be more in keeping with what she would have been doing prior to the accident.  In coming to this conclusion, I recognize that Ms. Runghen had not established her career as a massage therapist and that we do not have a solid base line from which to work.

[51]            I am mindful that there is no certainty possible in terms of predicting what will occur in the future; there is a possibility, even with the correct treatment for her injuries, that Ms. Runghen may still experience some limitations.

[52]            Applying the considerations identified in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), I find that Ms. Runghen is likely to be somewhat less capable, overall, of earning income from all types of employment and that, in particular, she is likely to be less capable of earning incoming from her chosen field of massage therapy.  Ms. Runghen may have to consider retraining in another field or another area of specialization within massage therapy if she wishes to work full-time.

[53]            In my view, given the potential for marked improvement in Ms. Runghen’s condition that both Dr. Cameron and Dr. McGraw identified in their reports, and based on Ms. Runghen’s own experience with a similar but truncated rehabilitation program with Karp, it would not be appropriate to apply the precise mathematical calculation of future income loss used by Ms. Runghen.  Rather, this is an appropriate case to award a sum that takes into account the various contingencies and possibilities, without overcompensating Ms. Runghen by assuming the status quo and calculating a set wage shortfall over the next 36 year’s of her working life.  I set that sum at $25,000. 

[54]            I find that Ms. Runghen will need approximately six months to put in place and complete a four-month exercise rehabilitation program.  During that time, she will continue to work at her current level.  I therefore award damages of $10,000 to cover loss of income during this period.  

[55]            In summary, I award Ms. Runghen  a total of $35,000 for loss of future income and loss of earning capacity

 

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
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