ICBC loses fight

The purpose of an award for pain and suffering, called “non-pecuniary damages”, is to provide money compensation that ameliorates the condition of an injured claimant. In making such an award, the following factors are relevant: age of the claimant;  nature of the injury;severity and duration of pain; disability; emotional suffering; loss or impairment of life;  impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle.

In this  rear-end car accident personal injury case the claimant was stopped in a line of traffic and hit by a pick-up truck doing 70 km per hour (Odian v. Carriere,2016 BCSC 112).  This case appears to be another example of ICBC refusing to make reasonable settlement offers before trial and it took 6 years to get the trial. In most other Provinces this case would have been settled long ago but in BC ICBC has a monopoly on auto insurance and has been refusing to make reasonable offers of settlement before trial. As a result ICBC has been paying some very large personal injury awards, this is an example.

At the time of the collision, the claimant was working at about 70% capacity due to a prior condition. The claimant suffered soft tissue injuries to her back, hip, knee, ankle and shoulder. These injuries all resolved within the first year.  The claimant also suffered an injury to her neck and has experienced headaches. Both of these injuries continue.

Prior to the car accident, the claimant suffered occasionally from neck and back pain, and headaches. She attended for chiropractic and massage treatments to alleviate her symptoms. Those symptoms did not interfere with her lifestyle or restrict her ability to work.

In the six years since the collision the claimant continued to suffer from neck pain and headaches and she gave up much of her recreational pastimes. Her relationship with her daughter and husband has been affected and she became impatient and short with tradespeople and clients. As stated by the Judge when awarding $100,000 to the claimant for her pain and suffering:

[59] Before these injuries, [the claimant] was an assured and proud owner of a homebuilding enterprise. Because of the injuries and the impact they have had on[the claimant] has lost confidence in herself and her abilities…

The total award to the claimant is summarized as follows:

a) Pain and Suffering: $100,000
b) Past loss of earnings (gross): $85,000
c) Future loss of earnings: $500,000
d) Cost of future care: $55,000
e) Loss of homemaking capacity: $20,000
f) Out of pocket expenses: $13,634
TOTAL: $773,634

Look out for the double costs award decision in this case because it is likely that the claimant made an offer to settle this case before trial which was rejected by ICBC!
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

1 Comment

  1. Hi I was in car accident on 4-4-16. My car has written off. ICBC came with offer I have said no to the offer yes I have pain in my mech solder ,headache lower back pain.

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