ICBC Appeals Large Punitive Damage Award.

http://www.courts.gov.bc.ca/jdb-txt/ca/16/01/2016BCCA0178.htm

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:

http://www.courts.gov.bc.ca/jdb-txt/ca/16/01/2016BCCA0178.htm

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.

Another snag for Uber in Vancouver: City council declines to allow ride sharing service in Vancouver.

Last week, Vancouver’s city council voted not to allow Uber to operate in Vancouver. That may not be the end of the story, as they also voted on a recommendation to urge the Ministry of Transportation to become more active in dealing with ride-sharing technology:

http://www.theprovince.com/business/Vancouver+taxi+companies+beating+Uber/11490241/story.html

Council unanimously voted for staff’s recommendation to urge the Ministry of Transportation to get more active in policy-making around ride-sharing technology. Council declined to permit Uber within the city’s limited licensing regime. From the taxi-industry point of view the city has no legal authority to host Uber anyway, after Transportation Minister Todd Stone’s stern warning a year ago.

This comes on the heals of several high profile incidents involving Uber in other cities in Canada. A recent anti-Uber protest by taxi drivers in Toronto escalated and led to a taxi driver being dragged down the street as a Uber driver attempted to escape this taxi driver, as the driver attacked his vehicle:

http://toronto.ctvnews.ca/anti-uber-protest-wraps-up-as-police-chief-agrees-to-meet-with-taxi-representatives-1.2693115

Protests in Toronto continue, as cab drivers surround city hall and obstruct traffic in the downtown core. The City of Toronto, however, seems firm in its stance that it will not be banning Uber:

http://globalnews.ca/news/2389591/traffic-slowdown-expected-as-toronto-taxi-drivers-stage-protest-against-uber/

Meanwhile in Alberta, both Edmonton and Calgary seem on the verge of creating licensing schemes, which will allow Uber drivers to operate legally within those cities. Uber drivers continue to operate illegally in both Edmonton and Calgary while their respective city councils scramble to pass legislation to deal with the situation. Edmonton’s city council looks primed to introduce a licensing fee of $920/year, which Uber claims is likely to drive them out of business:

http://edmontonjournal.com/news/local-news/edmonton-readies-for-a-crack-down-but-keeps-uber-afloat-for-the-holiday-season

http://calgaryherald.com/news/local-news/calgary-approves-regulatory-framework-that-opens-the-door-for-uber

Meanwhile in Montreal, Uber remains illegal, but operates anyways. The city has enforced anti-Uber laws, but sparingly. Despite many vehicle seizures, the ride-sharing App remains totally operational:

http://www.cbc.ca/news/canada/montreal/montreal-uberx-crackdown-1.3307144

Despite the above noted issues, it appears as though Toronto, Edmonton, and Calgary will all eventually allow Uber to operate legally. This leaves “progressive” Vancouver as a city that is falling behind. This seems at odds with Vancouver’s commitment to remove cars from high congestion areas and provide alternate transportation to its citizens.

Injured in a motor vehicle accident? ICBC may owe you compensation for retraining and tuition costs.

The Supreme Court of British Columbia recently awarded a plaintiff $5000 for future training on the grounds that there was a “reasonable likelihood” she would require it:

http://www.courts.gov.bc.ca/jdb-txt/SC/15/17/2015BCSC1740.htm

What made this award interesting was that the judge had also ruled that the plaintiff was “not, at this time, disabled in any meaningful way.” Additionally, this case dealt with a 48 year old plaintiff. Despite this, the judge did find that the Plaintiff would be disabled from some forms of work as a result of her motor vehicle accident. Accordingly, the plaintiff was given an award to allow her to seek employment in an alternate field.

This case illustrates how quantifying losses in a personal injury case can be a complicated process; it’s necessary to look at the plaintiff’s life as a whole, and subtle differences in lifestyle and history can lead to dramatically differing results. A good lawyer will help you to get the best settlement from ICBC possible by setting out an effective and evidence based argument. Judges need to be convinced that there is a “reasonable likelyhood” of an event, such as retraining, occurring. ICBC is unlikely to pay out a portion of a claim if they feel there is little risk of an award being made at a trial.

How much is my whiplash claim worth?

Whiplash is the term given to neck and upper back injuries caused by the rapid movement of the neck and head backwards and forwards. These types of injuries are very common in car accidents, which involve occupants with restrained bodies and unrestrained heads.

Unfortunately, there is no easy answer to what a whiplash case is worth. The value of a “whiplash” case can vary greatly depending on the specific characteristics of both the injury and the injured person. Whiplash type injuries can result in small amounts of temporary neck pain or they can result in injuries of great severity and duration. Whiplash-type events are notorious for causing severe injuries such as mild traumatic brain injuries and fibromyalgia.

As in other assessments for pain and suffering, the courts are likely to look at the following factors when assessing the value of a whiplash case:

1.  age of the plaintiff;
2. nature of the injury;
3. severity and duration of pain;
4. disability;
5.  emotional suffering;
6. loss or impairment of life;
7. impairment of family, marital and social relationships;
8. impairment of physical and mental abilities;
9. loss of lifestyle; and
10. the plaintiff’s stoicism.

http://www.canlii.org/en/bc/bcca/doc/2006/2006bcca34/2006bcca34.html

Basically, there is nothing special about whiplash injuries. The courts will assess their value using the same methodology they would use for any injury.

A major issue with whiplash injuries is they almost always consist of just soft-tissue injuries, which unlike a broken bone, cannot usually be objectively observed – although in some cases symptoms such as muscle tightness and lack of range of motion can be objectively observed by doctors. Thus, the credibility of the injured party plays a greater role in determining the amount of the award. When dealing with injuries that are likely to attract credibility attacks, the value of hiring an experienced personal injury lawyer is increased.

Regardless of who is at fault for your personal injury, ICBC may still owe you compensation for lost wages.

If you have been injured in a car accident and are unable to work, ICBC may owe you partial reimbursement for your losses. ICBC has a duty to pay Temporary Total Disability (TTD) benefits to qualifying injured parties. Qualifications for TTD benefits include:

1. Having been employed for 6 of the last 12 months. This does not mean consecutive employment, and you don’t actually have to have been employed at the time you were hurt;
2. Qualifying as one of the categories of “insured” people. The definition of insured persons is a wide one and not only includes drivers of vehicles but can also include passengers, cyclists, and pedestrians; and
3. Having been injured by a motor vehicle in Canada, the United States, or in a vessel travelling between the two countries.

The maximum payable under TTD benefits is $300/week. TTD benefits are not payable if you have another form of income or benefits that exceeds $375/week, and any amounts earned over $75/week will be deducted from the $300 weekly payments.

These payments are paid under what is commonly referred to as “no fault” benefits. What this means is that even if you are injured in a motor vehicle accident that you caused, you may still be entitled to these benefits.

Even if you qualify for TTD benefits, you still need to fulfill certain notice requirements such as providing “prompt” notice, providing a written report within 30 days, and providing a proof of claim within 90 days. As you can see, despite the fact the benefits are relatively widely available, the process to get them is quite onerous. This highlights the importance of knowing your rights and the expertise of a good personal injury lawyer.

Pre-existing injuries are not a bar to making an ICBC claim.

It’s a common misconception that you are barred from making a claim against ICBC for injuries arising out of a motor vehicle accident if you have pre-existing injuries. In fact, it ‘s quite common for people injured in car accidents to have pre-existing medical conditions of some kind, and having a pre-existing susceptibility to injury can actually increase your overall award.

This issue was dealt with in a recent Supreme Court of British Columbia case:

http://www.courts.gov.bc.ca/jdb-txt/SC/15/13/2015BCSC1351.htm

Here the plaintiff – who was a pedestrian in a crosswalk – was struck by a motor vehicle. The judge re-affirmed the legal principle that a plaintiff need not prove that an accident is the only cause of an injury. As long as an accident is a partial cause of an injury, a claim can be made. In this case, the plaintiff – prior to their car accident – was being treated by massage therapists. However, these pre-existing injuries were not affecting their ability to work. The car accident aggravated these pre-existing injuries to the point that the plaintiff was now unable to work overtime hours. The plaintiff in this case was given an award to compensate them for overtime hours they had missed as a result of their accident.

It’s very common for people – especially those involved in professions that require substantial amounts of manual labour – to have some kind of pre-existing physical injury. Many people regularly have “maintenance treatments” such as chiropractor, physiotherapy, massage therapy, and acupuncture treatments. ICBC may attempt to use these pre-existing conditions as a reason to deny a claim. This illustrates, once again, why it is important to seek proper legal advice when dealing with ICBC and other insurers.

Senior citizens and ICBC claims.

Senior citizens, who are typically retired, have a unique set of circumstances in their lives, and the courts have done their best to address these. Senior citizens often have limited incomes; injuries that require extensive medical care or result in limitations around the home can, thus, be especially devastating.

The issue of senior citizens and compensation for personal injury claims arose in a recent Supreme Court of British Columbia case:

http://www.courts.gov.bc.ca/jdb-txt/SC/15/13/2015BCSC1333.htm

This case involved an 80 year old woman who sustained personal injuries in a rear-end collision on the Lions Gate Bridge. This married woman had previously been self-sufficient, but was left with disabling physical and mental injuries. She was successful not only in receiving a large claim for pain and suffering but was also awarded $681,090 for future care costs. It was determined that the plaintiff was likely to need full time care in a residential facility and that her husband had the right to join her there.

When determining the plaintiff’s pain and suffering award, the judge turned to the “golden years” doctrine, which is meant to specifically take the circumstances of the elderly into account. The Golden Years doctrine takes into account various factors, including: the high value of retirement years; the profound effect injuries can have on elderly plaintiffs; and the unfortunate reality that elderly people are likely to pass away sooner than younger people. The plaintiff claimed $185,000 for pain and suffering and was awarded $180,000. This relatively high award reflects the profound effect the plaintiff’s injuries had on all aspects of her life.