Wage Loss Claims and Pre-Existing Injuries.

Wage loss claims that involve a plaintiff with pre-existing injuries are always complicated. It is the courts role to determine what losses are attributable to the new claim and what losses would have occurred in any event.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/20/2017BCSC2098.htm

In this recent Supreme Court of British Columbia case, the plaintiff was employed as a fisherman, with a history of working as a crew member or a skipper on seine style fishing boats. The plaintiff, at the time of their motor vehicle accident, was approximately 67 years old and had a pre-existing arthritis in his wrists and hands and diabetes. The plaintiff, after the accident, had surgeries to correct carpal tunnel syndrome, but the courts ruled that the carpal tunnel syndrome and the resulting surgeries were unrelated to the accident. The courts also ruled that the plaintiff’s arthritis would have gotten worse, even if the accident had not happened.

The plaintiff suffered a variety of soft tissue – including whiplash – injuries in a motor vehicle collision. Most notably, he suffered injury to his wrists and hands. This gave the courts the difficult task of determining what damages were related to the pre-existing hand and wrist injuries and which damages were related to injuries sustained in the motor vehicle collision. The plaintiff worked for approximately 3 more years after their accident but did not work afterwards. The plaintiff’s inability to work was the result of physical injuries and external market conditions, such as variations in fish runs.

The courts ruled that the plaintiff did have some impairment in his ability to work caused by their motor vehicle accident, but much of the plaintiff’s ongoing and previous income loss were due to his pre-existing injuries and resulting surgeries.

This case illustrates the difficulty in proving a past or future wage loss claim, but also illustrates that having pre-existing injuries is not a complete bar to recovery.

 

Facebook profile leads to finding of perjury in personal injury case.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0431.htm

In this recent Supreme Court of British Columbia personal injury case, the lawyer for the plaintiff was able to draw a connection between the defendant driver and a supposedly independent witness.

This case involved a rear end collision, which typically results in a presumption of fault against the following car that has struck the  vehicle in front. This presumption can be overturned, if the front car has themselves done something that contributed to the accident. For example, stopping suddenly in the middle of the road for no reason.

The witness, in this case, initially testified that they saw the car accident in question and that the plaintiff had indeed stopped suddenly for no reason. The witness stated that they did not know the defendant and had responded to a notice looking for witnesses. The counsel for the plaintiff, through solid sleuthing, was able to find a Facebook connection between the defendant and the witness. The witness ultimately admitted his perjury.

The odd thing about this case was that the evidence already established that the plaintiff had stopped suddenly without reason. The courts found the plaintiff 15% liable for the accident as a result. Had the defendant not concocted their story, the finding of liability against the plaintiff likely would have been greater, as more weight could have been given to the defendant’s evidence. Prior to the trial, ICBC had breached the defendant and denied the defendant insurance coverage.  Perhaps this created more incentive for the defendant to defend their case, but that was no excuse for committing perjury.

Future Costs of Care

Care costs can be one of the biggest financial worries to an injured party. The cost of even simple treatments, such as physiotherapy and massage therapy, has increased dramatically. These costs can be especially burdensome to someone who is limited in their ability to earn income. For someone with a long-term or permanent injury these expenses can continue long after their case is settled. Depending on the nature of the injury, these future care expenses can be an injured party’s largest losses. Injured parties may, therefore, be entitled to awards not only for past expenses but also for expenses they are likely to incur in the future.

A recent Supreme Court of British Columbia case awarded a plaintiff a large Cost of Future Care award:

http://www.courts.gov.bc.ca/jdb-txt/sc/16/00/2016BCSC0081.htm

Here, a plaintiff suffered a whiplash type injury, which eventually developed into chronic pain and led to various psychological injuries. The courts awarded the plaintiff costs that were deemed “reasonably necessary” costs necessary  to restore the plaintiff to their pre-accident condition to the extent that is possible. All costs had to be objectively justified by medical evidence. The plaintiff, who was likely to suffer from ongoing physical and psychological injuries well into the future, was awarded $200,000 for Cost of Future Care.

The judge in this case relied heavily on the evidence of expert witnesses who stated the plaintiff required various forms of treatment to treat his ongoing injuries. This illustrates the importance of ensuring you have effective counsel who will pick and fund the retention of these medical experts.

Seemingly minor whiplash injuries can develop into much larger problems.

“Whiplash”, which is commonly defined as neck and back pain caused by rapid and uncontrolled movement of the head, is one of the most common injuries people sustain in motor vehicle accidents. People often dismiss these injuries as minor or temporary. However, as in this Supreme Court of British Columbia case, whiplash injuries can often develop into chronic and disabling injuries that can impact personal and professional lives:

http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1532/2015bcsc1532.html

At the time of her motor vehicle accident the plaintiff in this case was a 46 year old certified general accountant. She sustained soft tissue injuries to her neck and back, which developed into a chronic pain syndrome with resulting psychological injuries. The courts ruled that not only was the plaintiff likely to continue experiencing physical pain, but her symptoms had escalated to the point they were likely to cause a “real and substantial possibility” of the plaintiff losing income in the future.

The plaintiff in this case was awarded $425,000 for future loss of earning capacity. When calculating how much this case was worth, the judge looked at the plaintiff’s earning salary before her injury and then used a mathematical approach based on an estimation of her ability to earn income after her injuries. This case illustrates how difficult it is to judge the value of a case early on. No one could have predicted that the plaintiff’s whiplash injury would have developed into such a serious issue. Had the plaintiff not sought proper legal advice or settled her case too early she may have been left with no compensation for future losses.

Car_accident,_Seattle,_1954

Can I make a claim for business losses for my new business?

work

This issue was recently dealt with by the Supreme Court of British Columbia:

http://www.courts.gov.bc.ca/jdb-txt/SC/14/24/2014BCSC2429.htm

Here, a part time accountant, who had plans to expand her business into a full time practice, was injured in a motor vehicle accident. As a result of the injuries she sustained in this accident, she was unable to expand her accounting practice. She was, however, successfully able to prove her case in court.

Currently,the plaintiff had to prove that, if they had not been injured, they would have had a real and substantial chance of expanding their business. The “real and substantial” legal test is dealt with in more depth in the case of Perren v. Lalari:

http://www.canlii.org/en/bc/bcca/doc/2010/2010bcca140/2010bcca140.html?searchUrlHash=AAAAAQAWInJlYWwgYW5kIHN1YnN0YW50aWFsIgAAAAAB

Basically, what this legal test boils down to is whether you can convince the judge there was an actual chance of you losing income and not merely just “speculation”. The best way to do this is to provide evidence. Evidence can be many different things. In the above case involving the accountant, the plaintiff’s credibility was probably the main factor. The Plaintiff was an accountant and the judge believed that she would have expanded her business, if she had been healthy.

In more speculative cases, such as a young person who has not yet entered the legal market, things become more speculative. That does not mean, however, that they are barred from making a legal claim. The judge will look at factors like academic performance, what schools/programs have they applied to, what did their parents do for work, etc..

In cases where things are very speculative, it is especially important to hire a lawyer, in order to ensure your case is properly framed.

 

What is the maximum award for pain and suffering in British Columbia?

The maximum award for pain and suffering (also called non-pecuniary damages) was set by the Supreme Court of Canada in January of 1978 at $100,000. Taking inflation into account this comes out to around $350,000:

http://www.courts.gov.bc.ca/jdb-txt/SC/14/14/2014BCSC1404.htm#BookMark88

Keep in mind that this number is pegged to inflation and will increase as inflation increases. The idea behind non-pecuniary damages is to compensate a plaintiff for injury that cannot be calculated. Unlike a medical bill or vehicle repair, you do not get a bill for the stress and pain that an injury costs.

Generally, the maximum award is reserved for catastrophic injuries. This includes injuries such as severe brain injuries, loss of limbs, paralysis in the limbs, disfigurement, or loss of sight. However, cases of severe psychological injury can also lead to very high awards for non-pecuniary damages. Longstanding and severe depression can consume a person’s life. Injuries sustained in a motor vehicle accident or the resulting disability can be the trigger for this depression. Depression, unlike more objective injuries, often goes untreated. As such, it is always important to discuss not only your physical injuries with your doctor but also any changes in mood.

It should also be kept in mind that although the non-pecuniary award is capped, other awards are not. There is no maximum award for loss of income or costs of care. These heads of damage will often far exceed an award for non-pecuniary damages in a catastrophic injury case. For example in the case of a sever injury a person may need to hire a full time care aid for the res of their life. The cost of this easily exceeds the maximum of $350,000 for non-pecuniary award.

pain and suffering

Distracted Driving is Now the Second Leading Cause of Car Accident Related Deaths

According to recent research distracted driving is now the second leading cause of driving fatalities. Driving with excessive speed is second, and drunk driving is third.

http://globalnews.ca/video/1545331/distracted-driving-now-the-second-cause-of-bc-crash-fatalities

This has, according to ICBC, resulted in an increase in rear end motor vehicle accidents of 14%. As a lawyer in Vancouver, British Columbia, I can attest to rear end collisions being one of the most common causes of personal injury. The majority of the cases I’ve worked on have involved rear end collisions.

From the perspective of an injured party, the rear end situation creates few liability issues. There is a general assumption that the party who has struck another vehicle from behind has been negligent. This can increase the ease at which an injured party can gain a fair settlement. However, this general assumption is not a strict rule. I will discuss this in a later blog posting dealing with rear end collisions and liability, but there are several circumstances where the driver of the car who has been struck from behind can still be found partially or entirely at fault.

texting car accident

Is this new epidemic of texting and driving an example of technology actually decreasing our safety? Are people putting their own safety, and the safety of others on the road, at risk for the sake of convenience?

As always I invite your comments, and if you have been injured by a texter (or anyone), please contact me for a free consultation.