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Surrey ICBC claims and personal injury settlement lawyer

Our Experienced Surrey ICBC claim and motor vehicle personal injury lawyers offer free initial consultations at our Surrey Office located at the corner of 56th Avenue and 152nd in South Surrey BC. We can be reached at 604-576-5400. Our senior personal injury lawyers are available 7 days a week and can attend upon clients when they are housebound or in the hospital.

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The recent case of Parker v Davis involved a rear end accident where the Plaintiff’s car was written off and the 23 year female suffered whiplash, neck and back pain, disc herniation and associated injuries. The Plaintiff and defendant disagreed over the correct financial compensation for the injured Plaintiff’s pain and suffering, economic loss and the cost of future care.

There are a number of different types of compensation the court considers in an ICBC car crash case.

Pain and Suffering

After reviewing similar past cases urged by both sides, the Court stated:

[29]         Considering the apparent plateauing of Ms. Parker’s symptoms and pain-related limitations three and one half years post accident, and the broad range of the effects of her injuries on her past, present and future enjoyment of life, which includes a 25-30% chance of further injury requiring surgery, I assess her non-pecuniary damages at $90,000.00.

Future Earning Capacity

[30]     Turning to the issue of future earning capacity, the test of course is whether the plaintiff has established a real and substantial possibility of such a future loss. I find that there clearly is a compensable loss established. The assessment of this head of damages involves a consideration of the relative probabilities of events that could give rise to such a loss, as well as the well known Brown v. Golaiy (1985), 26 B.C.L.R. (3e) 353 (S.C.) factors, namely:

[1]      whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

[2]      whether the plaintiff is less marketable or attractive as an employee to potential employers;

[3]      whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and

[4]      whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market.

[37]         Taking into account the specific possibility of income loss due to possible surgery and recuperation, the limitations identified by Ms. Henry, which may affect Ms Parker’s income even if she has a full career as a clinical counselor, the economic cost of a protracted education, and the Brown v. Golaiy factors, I assess Ms. Parker’s loss of future earning capacity at $60,000.

Costs of Future Care

[38]         Turning to the head of damages for future care costs, the established principles were succinctly summarized by Dickson J. in Hardychuk v. Johnstone, 2012 B.C.S.C. 1359, commencing at para 210:

[210] The plaintiff is entitled to compensation for the cost of future care based on what is reasonably necessary to restore him or her to the pre-accident condition in so far as that is possible. When full restoration cannot be achieved, the court must strive to assure full compensation through the provision of adequate future care. The future care award is to be based on what is reasonably necessary on the medical evidence to preserve and promote the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams (Guardian ad litem of) v. Low, [2000] B.C.J. No. 408 (S.C.); Spehar (Guardian ad litem of) v. Beazley, [2002] B.C.J. No 1718 (S.C.).

[211] The test for determining the appropriate award for the cost of future care is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of future care; and (2) the claims must be reasonable: Milina.

[212] Future care costs must be justified both because they are medically necessary and they are likely to be incurred by the plaintiff. The award of damages is thus a matter of prediction as to what will happen in future. If a plaintiff has not used a particular item or service in the past it may be inappropriate to include its cost in a future care award: Izony v. Weidlich, 2006 BCSC 1315.

[213] The extent, if any, to which a future care costs award should be adjusted for contingencies depends on the specific care needs of the plaintiff. In some cases negative contingencies are offset by positive contingencies and, therefore, a contingency adjustment is not required. In other cases, however, the award is reduced based on the prospect of improvement in the plaintiff’s condition or increased based on the prospect that additional care will be required. Each case falls to be determined on its particular facts: Gilbert.

[214] An assessment of damages for cost of future care is not a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9.

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