ICBC Tip-Of-The-Month (December 2014): 6 months of Soft-Tissue pain, BC Court says $32,500

In Reasons for Judgment delivered on December 10, 2014, Mr. Justice Ball of the New Westminster BC Supreme Court awarded compensation in a motor vehicle accident case

The plaintiff alleged that the the accident, in fact, caused rheumatoid arthritis (RA) - a degenerative condition.  The court goes through an interesting discussion on what the medical experts thought about causation on the RA issue. Ultimately, the court ruled that the RA was not caused by the accident. Instead, the court found that the accident only caused 6 months of soft-tissue pain and awarded $32,500.  

The court stated in Kabani v. Lee starting at paragraph 47:

[47] Based on the evidence before me I am satisfied that the soft tissue injuries Ms. Kabani incurred in the Accident were substantially healed within six months after the Accident and were not persistent symptoms thereafter.

Damages

[48] While there is no doubt Ms. Kabani suffered soft tissue injuries in the Accident and hence is entitled to damages, those are damages consistent with a minor soft tissue injury to her neck and upper back. Ms. Kabani submitted a number of cases, including Haag v. Serry, 2009 BCSC 187, Zigawe v. Rance, 2009 BCSC 1816 and Burtwell v. McCaffrey, 2013 BCSC 886, all in support for non-pecuniary damages of $100,000, together with damages for past wage loss, loss of future earning capacity, cost of future care and significant special damages.

[49] Each of the cases cited by Ms. Kabani is distinguishable because each of them deals with a situation where a plaintiff had a pre-existing medical condition where the court found that the accident either accelerated or exacerbated a pre-existing condition. In the case before me the evidence was that at some time after the Accident Ms. Kabani contracted rheumatoid arthritis and suffered considerably from that condition. For the purposes of this case, rheumatoid arthritis was not a pre-existing condition and was not, as I have found above, caused by the Accident. For this reason, claims such as past wage loss, loss of future earning capacity or significant special damages have not been proven to be connected with the Accident. No particular medical investigation or medication was prescribed by Dr. Witherspoon following the Accident. The abovementioned cases allow non-pecuniary damages from a low of $54,000 to a high of $80,000. I find this range to be excessive in the circumstances of this case.

[50] Counsel for the defendant submitted that the only damages which should be awarded to Ms. Kabani are non-pecuniary damages. Counsel for the defendant cited Ryan v. Klakowich, 2011 BCSC 835, Gron v. Brown, 2012 BCSC 391, Currie v. McKinnon, 2012 BCSC 698 and Johal v. Conron, 2013 BCSC 1924. Again, none of these cases are on all fours with the case before me, but there are marked similarities in some aspects of each of them. The range of non-pecuniary damages in these cases moved from a low of $22,000 to a high of $35,000.

[51] The only head of damages allowable on the facts of this case is non-pecuniary damages. I am satisfied that the appropriate figure for non-pecuniary damages for Ms. Kabani as a result of the Accident is $32,500.

If you are having trouble securing fair settlement from ICBC, contact Perminder S. Tung at LK Law for a free initial consultation. 


Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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LK Law Secures $200,000 ICBC Injury Judgment

In Reasons for Judgment rendered November 27, 2014, Mr. Justice Skolrood of the New Westminster BC Supreme Court awarded $201,763.00 in total damages resulting from a July 16, 2009 motor vehicle accident. 

Benson v. Day, 2014 BCSC 2224

Mr. Benson, client of LK Law, was involved in a crash at the intersection of 204th Street and Fraser Highway in Langley, BC.  He was 57 years old at the time of trial and worked as a metal fabricator. The trial was conducted by Paul Kent-Snowsell of LK Law. 

He was awarded $110,000 for pain and suffering. His injuries consisted of complex soft-tissue pain with impairment on his cognitive and psychiatric functioning. 

He was awarded $5,770 for past income loss and $76,500 for future income loss. 

Cost of future care award was $17,953 to obtain future medical treatments.

Loss of housekeeping capacity was evaluated at $5,000 and out of pocket expenses of $3,040. 

Mr. Benson's pain and suffering award, and income loss awards were reduced by 15% for failing to follow some of the recommendations made by his physicians (see previous blog post on this issue for more information about your "duty to mitigate your losses").

LK Law has experienced trial lawyers that will seek an optimum settlement on your behalf, or take your case to trial for a fair assessment by our court system.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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ICBC Tip-of-the-Month (November 2014): Vacation Time Used is not Compensable

Used Vacation Time

In reasons for judgment delivered on November 19, 2014 in McCartney v. McArthur, Mr. Justice Bowen of the BC Supreme Court declined to award a plaintiff compensation for used vacation time while off recovering from his motor vehicle accident related injuries.

The Plaintiff missed a week of work and used up his vacation time during this period.  He was paid accordingly by his employer during the week off.  In finding that no claim for loss of income for this period can be advanced in his tort claim Mr. Justice Bowden provided the following brief reasons:

"[82] At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.

[83] The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.

[84] While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income."

LESSON: use accumulated sick time for missed days from work due to accident related injuries, rather than vacation time.  The vacation time will be treated as vacation and you will not receive additional compensation. Sick time is considered to be a benefit lost and compensable. 

If you are confused or would like advice, consult an experienced ICBC personal injury lawyer.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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ICBC Tip-of-the-Month (September 2014): Providing a Statement to ICBC

ICBC Statement

"ICBC is asking me to make a statement, what should I do?"

It is normal for passengers and drivers who have been injured in an accident to feel a bit shaken up in the aftermath. It is important to contact experienced legal counsel right away in order to ensure your rights are protected and your claim is handled in a fair manner. ICBC does not represent you and they not necessary have your interests in mind when it comes to claims.  Like most insurance companies, their primary goal is to minimize claims and reduce exposure.

If you are clearly not at fault it is crucial to take time to organize yourself before your first meeting with ICBC. Though a Statement seems like a simple matter, adjusters are trained specifically to dig for information that you may not think is terribly relevant to the incident.

During your first interview with ICBC (either in person or over the phone with dial-a-claim) they are digging for information about your coverage and your claim. They may eventually ask you to come in to provide a statement or will take your verbal statement over the phone.

  

These verbal or written Statements can be used later in a court proceeding to question your credibility.  It is important that you are as accurate as possible and fix any errors that you see. 

Later in the claim, the ICBC adjuster’s job is to value the “impact the accident has had on your life”. This means they want information on the quality of your life pre accident. In order to prepare yourself for making a statement you should jot down a few notes on the following:

Pre-Accident Health:

·         Did you have any pre existing back or neck pain before the accident?

·         Did your doctor diagnose you with any back or neck conditions pre accident? If so were you prescribed any medication or referred to a chiropractor or physiotherapist? If you had any injuries pre- accident would you say you were fully healed before the time of the accident?

·         A good idea is to make an appointment with your doctor and review your medical history

Details of the Accident:

·         Time, distance, and any other details you can recall about the accident

·         Insurance coverage issues, which can be tricky without speaking to a lawyer first

Pre-Accident Income:

·         Make copies of your T4’s for at least two years before your accident

·         Start compiling all your pay stubs

Hobbies, sports and extra-curricular activities:

·         Prior to the accident what kind of athletic activities did you participate in? Have you attempted to return to those activities? If so are you able to continue those activities without pain? ( Running, working out, snowboarding, gardening, horseback riding, mountain biking, walking to work, etc.)

·         Have your social activities been effected in anyway?

Your injuries:

·         Properly document your injuries

·         If they injuries are serious enough, ICBC might send you to one of their doctors

·         See my post on “ICBC wants me to go to a doctor, now what?”

Your seat belt and headrest

·         Were you wearing your seatbelt? Was the headrest adjusted for you?

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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ICBC Tip of the Month (August 2014): Dear Diary

Dear Diary

Keeping a pain diary is essential to recalling your injuries in the long run. An ICBC defence lawyer or adjuster may ask you to recall specifics of claimed pain and injuries during questioning possibly years after the initial accident. Therefore it is important to keep some records of pain and injuries, what you were doing when it happened and how long it lasted.  It is also important to keep notes about important events that were missed, vacations that were ruined and attempts to return to recreational activities that did not go well. 

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

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New Partners Signal Growth at LK Law

New Partners Signal Growth at LK Law

 

LK Law is  proud to announce that six associate lawyers have become partners at LK Law. For them, achieving partner status is a highly deserved career milestone. For the firm, it denotes a new wave of growth that began with the recent expansion of our Langley office. Our newly minted partners bring to the firm not only exceptional legal talent, but also the energy and connectivity of today’s social media generation. Contact any of them through either our Vancouver or Langley offices. Congratulations to all LK Law’s newest partners.

Timothy N. Grier works in the Langley office and practices in the areas of wills and estates including Committee applications, corporate and commercial, and real estate. For further details, view Tim’s bio.

Christopher Martin has broad litigation experience in a variety of corporate commercial matters, including resolving contractual, corporate governance, shareholder and partnership disputes. For further details, view Chris’ bio.

Mark von Marksfeld’s primary practice focuses on banking and secured lending, commercial real estate, and mergers and acquisitions. For further details, view Mark’s bio.

Tim Goepel practices in the general litigation group. Tim handles cases involving commercial contracts, shareholder and partnership disputes, fraud and intellectual property. For further details, view Tim’s bio.

Erin J. Easingwood practices primarily in Vancouver but also Langley with a solicitor’s practice including corporate and commercial law, wills and estates, and real estate. For further details, view Erin’s bio.

Perminder S. Tung practices civil litigation with an emphasis on ICBC MVA injury claims, insurance coverage disputes and business/commercial litigation. Perminder works primarily in the Langley office. For further details, view Perminders bio.


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