A sprinkling of true judicial magic was used to arrive at a fair award in this multiple injury case. This was a complicated personal injury case arising from three car accidents wherein the injury claimant settled the second of the three claims with the Minister of Justice but could not reach settlement with Insurance Corporation of British Columbia (ICBC) for the other two car accidents. The claimant sought compensation for injuries suffered in the remaining 2 separate motor vehicle accident from the Insurance Corporation of British Columbia (ICBC). Liability was admitted for all three incidents.

ICBC argued that the settlement proceeds from car accident #2  must be disclosed and simply deducted from the global award made in this case. The judge did not agree because that would require the court to treat injuries as indivisible where found to be divisible. “Findings of divisibility and indivisibility are inherently fact-specific”. However, from the $264,000 awarded the judge did  order the settlement amount with the  Minister of Justice be disclosed and deducted from the $22,000 awarded for the neck and back injury.

The judge found  each of the neck and mid back injuries were “indivisible” and were caused by car accident #1 and car accident #2 . The low back and knee injuries were “divisible” and caused by car accident #1 and car accident #3. The judge further found that car accident #2 caused a temporary aggravation of the low back symptoms which was irrelevant to divisibility.

The first and second car accidents are referenced in one  personal injury lawsuit and the third car crash in a separate notice of civil claim. There was an order that the two claims be heard together. The claimant settled his claim with the defendant, the Minister of Justice, in respect of the second car accident. The terms of that settlement were not known to the Court. The defendants in the first and third accidents had the same lawyer hired by ICBC.
The judge awarded $70,000 for pain and suffering globally due to all three accidents. The judge then attributed the following amounts to each area of injury:

Area Amount
Shoulder         $ 2,000
Knee            5,000
Aggravation of low back pain symptoms attributable to MVA#2            7,000
Neck and mid-back            7,000
Low back          49,000

   The only indivisible injury was the neck/mid-back injury. The settlement amount received by the claimant in the out of court settlement with the Ministry of Justice was deducted from the $22,000 awarded here.

[16]  In summary, the defendant from MVI1, responsible for the divisible low back injury and the indivisible neck/mid-back injury, is liable to pay $209,000 for the low back injury (consisting of $49,000 in non-pecuniary damages, $120,000 for past loss of income, and $40,000 for future capacity to earn income), as well as the difference between the $22,000 awarded for the neck/mid-back injuries (consisting of $7,000 in non-pecuniary damages and $15,000 for past loss of income) minus the amount of the settlement between the plaintiff and the defendant in MVI2 that represents the losses for the indivisible neck/mid-back issues. As in Ashcroft, the parties are at liberty to apply to make further submissions regarding the appropriate deduction to be made as a result of the settlement in MVI2.

[17]  The defendant from MVI2, responsible for the divisible temporary aggravation to the plaintiff’s low back injury and the divisible shoulder injury, as well as the indivisible neck/mid-back issues, has settled with the plaintiff and been released from liability in this matter.

[18]   The defendant from MVI3, responsible for the divisible knee injury, is liable to pay $5,000 (in non-pecuniary damages).(Fleming v. McAllister, 2017 BCSC 753)

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.fighting for injury victims in BC since 1995.

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