ICBC Appeals Large Punitive Damage Award.

As covered in a previous article, the Supreme Court of British Columbia awarded a $350,000 punitive damage award against ICBC. The courts used various adjectives to describe the conduct of ICBC and its employees, including:  highhanded, reprehensible, and malicious. The courts found that the behaviour of ICBC was heavy-handed, and they had attempted to intimidate members of the public, whom they were supposed to serve.

Unfortunately for the plaintiff in this lawsuit, ICBC has appealed the award against them. Additionally, ICBC has also been successful in an application to withhold funds actually being paid to the plaintiff until the outcome of ICBC’s appeal:

This procedure, which is known as a stay in execution, was granted in this case, as the appeal court held that ICBC’s argument had “merit” and was not “bound to fail” (this is not the same as likely to succeed) and there was a risk that ICBC would be unable to recover if the plaintiff, who had limited sources of income, spent the award.

It should be noted that this is only a partial stay in execution. The plaintiff, for now, will be able to keep her awards for emotional distress ($30,000), legal fees ($7,225.34), and previous costs awards. If ICBC is unsuccessful in their appeal, the plaintiff will receive all of her award plus likely an additional award for costs for successfully defending an appeal.

Soft tissue injuries develop into chronic pain disorder and severe psychological injury: plaintiff awarded $984,167 in damages.

Of note in this case was not only the large overall award, but the relatively large award for pain and suffering (AKA non-pecuniary damages) of $170,000. This award acknowledges the severe affect chronic pain syndromes and psychological injury can have on a plaintiff’s life. The judge in this case noted the plaintiff’s inability to participate and enjoy social and community activities. The plaintiff in this case, prior to her motor vehicle collision, had been relatively active and also engaged in community events such as attending at local religious institutions and socializing with friends. The injuries the plaintiff sustained in this collision, severely affected her ability to participate in these activities.

It should also be noted that in order to receive such a large award, the plaintiff had to meet a heavy evidential burden. The evidence in this case included expert testimony from a physiatrist, an anaesthesiologist, a psychiatrist, a psychologist, the plaintiff’s family doctor, an occupational therapist, and an economist. Hiring such a large array of experts is not uncommon in cases involving severe psychological injuries. These injuries, unlike more easily observable orthopaedic injuries, often result in far more credibility issues. Hiring experts to confirm a plaintiff’s injuries is an excellent way to shore up a plaintiff’s credibility. A good personal injury lawyer will not only help you select proper medical experts but will help you fund retaining them.

This case also, once again, illustrates the importance of not settling too early. Had this plaintiff settled early on with ICBC, the full extent of her psychological injuries may not have been known and a fair settlement would not have been reached.

Estimating wage losses in personal injury cases: what are contingencies?

When estimating both past and future wage loss, the courts must take into account all positive and negative contingencies. In this context, a positive contingency is a likely event that will have a positive effect on earnings. A negative contingency is a likely event that will have a negative effect on earnings. For example, a layoff might be a negative contingency and a promotion might be a positive contingency. In order to determine which contingencies are likely, the courts will look at factors such as the specific circumstances of the individual, the nature of the industry they work in, and contingencies common to the general population as a whole.

In a recent Supreme Court of British Columbia case, the courts found that both the positive and negative contingencies were likely to “balance out” and made no deductions to future wage losses for contingencies:

“[86]         With respect to contingencies, I am of the view that no deduction should be made. Given the importance the plaintiff placed on her employment, I do not think that there is a real possibility that she would have left work before 65 or voluntarily reduced her working hours. On the contrary, she may have worked beyond that age on a full- or part-time basis. While the plaintiff may have required time off for illness in the future even without the accident, it is also possible that she would be promoted to a higher-paying position. Finally, a lay-off is possible but unlikely; her employer is accommodating and evidently thinks highly of the plaintiff as an employee. Overall, I conclude that the positive and negative contingencies balance out.”

This recent ruling recognized that workers now tend to work beyond aged 65 and gave the plaintiff credit for a history of devotion to her employment. Despite general negative contingencies that are likely to affect the working population as a whole – early retirement, illness, and layoffs – the plaintiff, in this case, did not have any amounts deducted from her award to reflect contingencies. This case involved a relatively small whiplash style accident. The plaintiff’s injuries, however, manifested into much larger psychological problems. This case illustrates the benefits of effective and competent counsel.