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People injured in a motor vehicle collision in British Columbia may have an ICBC Claim for their injuries if the accident was caused by the fault of another driver. If you or a family member were injured in a pedestrian accident, cycling accident, or motor vehicle accident due to the negligence of another driver, you may have a claim for compensation for the pain and suffering that your accident injury has caused you to go through.

The legal term for pain and suffering compensation is "non-pecuniary damages". Every person who is injured in a car accident in British Columbia is going to be affected differently. One person in the car accident may suffer a whiplash injury and have an ICBC claim for soft tissue injury to their neck and back. A different person in the same car accident may suffer a spinal injury and have an ICBC claim for paraplegia or quadraplegia. Suffice to say, every claim is different from the next, and the Greater Vancouver ICBC personal injury lawyers at Becker Lavin & Wessler can help guide you through that process and make sure that you are getting fair compensation for your pain and suffering.

The amount of an award for non-pecuniary damage in a car accident injury case does not depend alone upon the seriousness of the injury, but upon its ability to fix the condition of the injured person considering his or her particular situation. How serious the injury is, is not the deciding factor. An appreciation of the individual's loss is the key. In dealing with pain and suffering damages, it is impossible to develop a chart of what type of injury is worth what amount of compensation. The amount will vary in each case to meet the specific circumstances of the individual case. "Putting a face to the ICBC claim number" and telling the tale of how YOUR specific injuries affected YOUR life is what the ICBC auto accident personal injury lawyers at Becker Lavin & Wessler strive for in every case. We do this to help convince the insurance company, and if need be, the court, why the compensation we are seeking for your ICBC injury is fair and reasonable.

In the 2006 decision of the British Columbia Court of Appeal in the case of Stapley v. Hejslet, the three-judge panel was asked to assess whether a jury award for non-pecuniary damages was too high. They also listed factors that are a useful starting point to help tell the tale of how your motor vehicle accident injury affected your life and that of your family.

The inexhaustive list of common factors that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff).

If you or a family member have been injured in a car crash, motorcycle accident, pedestrian collision, or a cycling accident, the personal injury lawyers in Burnaby at Becker Lavin & Wessler can help determine what is an appropriate amount to compensate you for the effects that your injury has had on you.

Labels: non-pecuniary, pain, Stapley v. Hejslet, suffering

As Greater Vancouver ICBC personal injury claim lawyers, there are many aspects to your ICBC injury claim that can evolve from the medical evidence that we investigate to make sure that you are receiving fair compensation for your ICBC motor vehicle accident injuries. In our previous post, we set out the legal framework surrounding the head of damage referred to as Loss of Future Earning Capacity. In this post, to give you more information about this head of damage as it is called, we include a summary from a recent decision by the Honourable Mr. Justice A. Sanders about the factors that a Court must assess, in determining the amount to award under this head, for a person injured in a British Columbia auto accident, pedestrian accident, or cycling accident in British Columbia, as well as any other personal injury claim in B.C.:

[271] The consequences of the findings I have made as to the extent of the plaintiff’s disability - together with other considerations as to potential future outcomes, with and without the accident having occurred - are to be evaluated by means of the type of analysis undertaken by Finch J., as he then was, in Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[272] The assessment of the pecuniary loss that flows from this analysis must bear in mind the following considerations.

1. First and foremost, the plaintiff is entitled to be restored to the position he or she would have been in but for the defendant’s negligence, so far as that can be done with a monetary award. This may involve “a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened” – Rosvold v. Dunlop, 2001 BCCA 1 at para. 8.

2. The task of a court is to assess damages, rather than to calculate them mathematically – Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. While the assessment is based on the evidence, it necessarily involves an element of “crystal ball gazing”: Andrews.

3. The standard of proof is not the balance of probabilities; the plaintiff need only establish a real and substantial possibility of loss, one which is not mere speculation, and hypothetical events are to be weighed according to their relative likelihood – Athey v Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27.

4. Allowances must be made for the contingency that the assumptions upon which an award is based may prove to be wrong – Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

5. Any assessment is to be evaluated in view of its overall fairness and reasonableness – Rosvold, at para. 11.

This is a complicated area. Often, insurance companies only reluctantly pay for loss of future earning capacity, and often only pay fair amounts after a trial. Proving that your ICBC motor vehicle accident injury will cause your work to be affected in the future depends on medical evidence from specialists, as well as calculations from economists. The ICBC personal lawyers at Becker Lavin & Wessler can guide you through this process. If you are permanently injured in a motor vehicle collision and have an ICBC Claim, we can investigate your claim, and explore the medical evidence to make sure that you are receiving fair compensation for your car accident or pedestrian accident injuries.

Labels: ICBC, loss of future earning capacity, permanent injury, wage loss

If you sustain permanent injuries in a car accident in British Columbia, it may be that you are entitled to an award for loss of future earning capacity. A recent decision of the Honourable Madam Justice Dardi relating to injuries suffered in a motorcycle collision in Coquitlam sets out a good summary of the legal framework of loss of future earning capacity.

An award for future loss of earning capacity represents compensation for a pecuniary loss: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32. The legal principle that governs this assessment for loss of earning capacity is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant’s negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185. Compensation must be made for the loss of earning capacity and not for the loss of earnings: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229.

The recent jurisprudence of the Court of Appeal has affirmed that the plaintiff must demonstrate both an impairment to his or her earning capacity, and that there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. If the plaintiff discharges that requirement, he or she may prove the quantification of that loss of earning capacity either on an earnings approach or a “capital asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. Regardless of the approach, the court must endeavour to quantify the financial harm accruing to the plaintiff over the course of his or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19.

As recently enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform the assessment of loss of earning capacity include the following:

(1) The standard of proof in relation to hypothetical or future events is simple probability, not the balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.

(2) The court must make allowances for the possibility that the assumptions upon which an award is based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic as opposed to a speculative possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).

(3) The court must assess damages for loss of earning capacity and not calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11. The assessment is based on the evidence, taking into account all positive and negative contingencies.

Although a claim for “past loss of income” is often characterized as a separate head of damages, it is properly characterized as a component of loss of earning capacity: Falati at para. 39. It is a claim for the loss of value of the work that an injured plaintiff would have performed but was unable to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley at paras. 31-32.

This court in Falati at para. 40, summarized the pertinent legal principles governing the assessment of post-accident, pre-trial loss of earning capacity and concluded that:

[40] ... the determination of a plaintiff’s prospective post-accident, pre-trial losses can involve considering many of the same contingencies as govern the assessment of a loss of future earning capacity. ... As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at para. 29,

“What would have happened in the past but for the injury is no more ‘knowable’ than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events.”

With respect to the loss of earning capacity from the accident to date of trial, the defendants are only liable for the net income loss, as defined in s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. In Lines at para. 184, the Court of Appeal held that “it was the intention of the Legislature to give a discretion to the judge to determine what period or periods are appropriate for the determination of net income loss in all of the circumstances”.

If you or a family member have been injured in a motor vehicle collision, motorcycle collision or a pedestrian collision, the Burnaby personal injury lawyers at Becker Lavin & Wessler can provide you with a free consultation so that you know your rights, know what you entitled to by way of compensation, and know that you are being treated fairly in your ICBC injury claim.

Labels: ICBC claim, loss of future earning capacity, loss of income, permanent injury