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ICBC Pre-existing Injury Claim

Vancouver ICBC soft tissue injury

Vancouver ICBC soft tissue injury lawyer Spencer MacLean

Our highly experienced ICBC pre-existing injury claim lawyers at MacLean Personal Injury know that people do not go through life without suffering some kind of injury, disease,or  congenital defects.  Our seasoned ICBC pre-existing injury claim lawyers also know that as we age our bodies suffer wear and tear of joints, bones, muscles and the like. So it isn’t surprising that our ICBC pre-existing injury claim lawyers are often asked how a preexisting injury or condition someone had before their accident impacts on them receiving the largest possible money settlement for their injuries. If you have a ICBC pre-existing injury claim, it pays to hire a top lawyer.

Call us toll free at 1-877-602-9900 right after you are treated and if you can safely do it then call us right from the scene to get immediate advice. 

You Are Not Entitled To Be Made Better Than You Were Before The Crash

In ICBC car injury accident cases, the injured victim will face questions about their  previous or “pre-existing” conditions or injuries from highly skilled ICBC claim adjustors, defence lawyers and their legion of medical experts.  We tell our injured clients that in ICBC pre-existing injury claim cases the injured person is not entitled to recover damages to put them in a position better than they were as a result of their preexisting injuries and conditions that were there before the accident.

But Our Tenacious and No Nonsense ICBC Settlement Lawyers Will Put You back To Where You Were Before The Crash

Our ICBC Pre-existing Injury Claim lawyers are emphatic with our clients and ICBC adjustors and their team that our injured client will be fully and generously compensated for their pre-existing injuries and conditions that are made worse because of the accident whether you suffer physical or mental injuries that cause you pain and suffering, wage loss and expenses for treatment.

ICBC Pre-existing Injury Claim

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ICBC Pre-existing Injury Claim

Just because you are more susceptible to injury in an ICBC car accident case, does not mean that you entitled to reduced compensation because of the pre-existing injury or condition.

Our ICBC Pre-existing Injury Claim lawyers ensure our clients are upfront about about their medical condition prior to the ICBC car accident that re-injured our client. Credibility is crucial in a ICBC Pre-existing Injury Claim and honesty is always the best policy. We are constantly surprised at how often ICBC takes a highly skeptical to legitimate personal injury claims. In a recent case we were involved in, the ICBC offer until a few weeks before trial was a mere $4000 and it settled for over $500,000 at mediation.

 

BC’s Most Unlucky Driver Suffers Injuries From 13 Car Crashes

In a ICBC pre-existing injury claim case, involving a man who suffered injuries in 13 separate car crashes, the trial judge had to determine how to apportion liability in 4 accidents that the victim suffered shortly after settling a case form  9 earlier car crashes.

In Uppal v. Judge a judge found it impossible to separate the injuries a victim suffers in each of 4 recent accidents and he had to deal with the arguments of how the victim’s preexisting condition affected the damage award:

[1]             The plaintiff, Bhupinder Singh Uppal, claims damages arising out of four motor vehicle accidents that occurred on July 20, 2009, May 13, 2010, June 10, 2012, and December 21, 2014. Mr. Uppal commenced four separate proceedings that were heard together. Liability has been admitted, except for the accident of May 13, 2010. For the reasons which follow, I find the defendant Karnail Singh Bassi liable for the accident of May 13, 2010. Damages are therefore the only issue.

[2]             Mr. Uppal’s claims are complicated by the fact that he had pre-existing physical and psychological injuries. Between December 2001 and January 25, 2006 he had at least nine motor vehicle accidents. He commenced proceedings relating to seven of the accidents and they were settled in May 2009. There are extensive medical reports and a functional capacity evaluation report relating to Mr. Uppal’s conditions and symptoms shortly before the settlement.

ASSESSMENT OF DAMAGES

Non-pecuniary damages

[84]         Both parties rely on Schnurr v. Insurance Corporation of British Columbia, 2015 BCSC 1630. In that case the plaintiff claimed damages for injuries sustained in three separate motor vehicle accidents. At the time of the first of those accidents, she was suffering from a chronic pain disorder and related psychological problems from three earlier accidents, and was not capable of working. The plaintiff – like Mr. Uppal – was a poor historian, but because of the litigation and settlement of the three earlier accidents, there was considerable medical evidence relating to the plaintiff’s condition immediately before the first of the subject accidents. Mr. Justice Skolrood referred to the general principles of causation in negligence as summarized in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, and stated:

[153]  Where, as here, a plaintiff has pre-existing conditions, the court must consider how those conditions relate to the plaintiff’s current complaints. A defendant tortfeasor is liable for all injuries caused by a tort even if those injuries are more severe than might otherwise be the case due to the plaintiff’s pre-existing condition (the “thin skull rule”). However, the defendant is liable only for the injuries actually caused by the accident and not for any effects of the pre-existing condition that the plaintiff would have experienced in any event (the “crumbling skull rule”). Put another way, the defendant is liable for the additional damage but not the pre-existing damage (Athey, at paras. 34 – 35).

[154]  Significantly, the issue of causation is distinct from the issue of damages. The ‘but for’ test applies even if there are several tortious and non-tortious causes for a plaintiff’s injury, and in such cases each negligent defendant is fully liable for that injury. After determining causation, the rules of damages then consider the plaintiff’s original position, apportionment between the defendants, and other relevant considerations. This was succinctly stated by McLachlin C.J.C. for the Court in Blackwater v. Plint, 2005 SCC 58 at para. 78:

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …

[155]  In cases such as this, where there are multiple causes of the plaintiff’s injuries, the court must determine whether the injuries are divisible or indivisible. In Sediqi v. Simpson, 2015 BCSC 214 [Sediqi], Madam Justice Fisher described the difference between the two types of injuries this way at para. 36:

Divisible injuries are those that can be separated so that their damages can be assessed independently. Indivisible injuries are those that cannot be separated: Bradley v. Groves, 2010 BCCA 361 at para. 20.

[156]  Whether an injury is divisible or indivisible affects both the causation analysis and the damages analysis, as summarized in Moore v. Kyba, 2012 BCCA 361 at paras. 35–43 [Moore]. First, the causation analysis determines whether a defendant is liable for an injury. Each defendant is separately liable for the divisible injuries that they have caused, and jointly liable for indivisible injuries that they caused together with the other defendants. Next, the damages analysis determines what compensation a plaintiff is entitled to receive from a defendant and again, individual defendants must compensate divisible injuries and indivisible injuries must be compensated by the defendants jointly.

[85]         Like the plaintiff in Schnurr, even though many of Mr. Uppal’s complaints relating to the subject accidents are related to injuries sustained in the earlier accidents, it is possible to determine his original position shortly before the accident on July 20, 2009.

[86]         I find that Mr. Uppal’s injuries resulting from the accidents on July 20, 2009, May 13, 2010, June 10, 2012 and December 21, 2014 are divisible from the injuries arising out of the earlier accidents, but that his injuries from the subject accidents are indivisible. It is difficult, if not impossible, to separate out which of the subject accidents caused or contributed to which injuries.

[100]     I find that based on all of the evidence, work is critical to Mr. Uppal’s sense of self-worth. He will work and look for work whenever he is able to, and will work despite being in pain.

[105]     I find that but for the accidents, Mr. Uppal lost $80,000 from his project management contracts, and he could have done other work. He could have worked a few hours a day, but I do not expect he would always have work because of the cyclical and sporadic nature of house construction, and that absent the accidents, he would have difficulty at times working consecutive days. I find an appropriate award for past wage loss to be $125,000.

Don’t sell yourself short when you are reinsured or your pre-existing condition is exacerbated. Contact us now by filling out our rapid response free appointment form or simply call us now 1-877-602-9900 to start healing and the road to financial recovery.



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