The Injury Award
In this car accident injury case, the claimant was found to have suffered from a severe and chronic somatoform pain disorder. He was awarded over $1.5 million which included $180,000 for pain and suffering; Past loss of earning capacity of $178,000; future loss of earning capacity of $1,176,000; and out of pocket expenses of $13,817. (MacKinnon v. Swanson,2022 BCSC 1821)
The Car Accident
The claimant drove his vehicle from his home in North Vancouver to his workplace in Port Moody. He was stopped behind another vehicle when he was struck in the rear by the Toyota driven by the Defendant.
The force of the impact pushed his vehicle into the vehicle in front of him. The estimated cost of repairing the claimants car was $6,750, an amount that exceeded the vehicle’s value. This resulted in it being “written off” by ICBC. The court was quick to find the Defendant liable for the car accident and ascribed her 100 percent of the fault.
No Cost of Future Care Claimed
However, the claimant did not make a claim for his cost of future care despite his serious injury. This was despite the judge stating that had he done so an award would have been made.
The reasons the claimant did not make this cost of care claim were: The law limiting expert evidence in vehicle injury cases and the law capping recoverable disbursements, at 6% of the total award of damages assessed by the Court (or the amount of any accepted offer to settle the case; avoiding the additional evidence and related expense for complicated assessments and calculations necessary for the award and then having the award radically reduced, if not eliminated, by the “deemed release” mandated by s. 83 of the Insurance (Vehicle) Act; and the high probability that any necessary medical expenses will be recoverable from the benefits plan administered by Pacific Blue Cross.
As the judge stated:
While I certainly understand counsel’s frustration with legislated provisions which are clearly designed to protect the financial interests of ICBC, as opposed to ensuring full compensation for persons injured as a result of the negligence of ICBC insured drivers, one might question the wisdom of forgoing an award that ensures at least some recovery for future medical or other care costs caused by the fault of the Defendant.
Rather remarkably, in the final submissions made by ICBC an allowance was made for an award of cost of future treatment that would assist in recovery. While acknowledging that these expenses would be payable under Part 7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 and hence deductible under s. 83 of the Insurance (Vehicle) Act, the ICBC lawyer informed the Court that ICBC was not in fact volunteering to make these payments.
The judge found that, “These muddled submissions and arguably inconsistent positions taken by ICBC do not reflect well on the Corporation.”
Currently the laws brought in by the NDP to help ICBC and damage injury claims are being challenged in the courts.