Hosseini-Nejad v. Roy, 2000 BCCA 397
July 26, 2011- This car accident brain injury case has been judicially considered at least four times and is still good law as of the date of this article. In this case ICBC hired lawyers to defend the brain injury claim as the at fault driver did not appear at trial.
The trial judge concluded that the award for pain and suffering should be set at $125,000 on the basis that the injury claimant’s enjoyment of life and his quality of life had been permanently and seriously altered. The claimant was awarded $500,000 for the cost of future care. He was also awarded $500,000 by the trial judge for the loss of his income earning capacity.
The Court of Appeal for British Columbia found that the second accident was more severe in its effects because of the seriousness of the first accident and the proximity of the second accident to the first.
More substantively, there was an issue about legal causation and about the correct way to apply the decision of the Supreme Court of Canada in Athey v. Leonati,  3 S.C.R. 458. The Honourable Mr. Justice Lambert of the Court of Appeal found that decision in Athey v. Leonati, supra, cannot be said to have been incorrectly applied once the trial judge’s conclusions of fact are accepted, as they must be since they are supported by evidence.
The timing of the second accident is key to this case. Unfortunately, it came too close after the first accident, where a significant head injury had occurred. The second accident was severe because of the seriousness of the first accident and the proximity of the second accident to the first. The trial judge found that this is not a situation for apportionment and the second accident caused the permanent damage.
The Appeal of ICBC was dismissed and the $1.125 million dollar trial award was upheld. Posted By Mr. Renn A. Holness
Issue: Should injury victims be blamed for their prior conditions?