Not Following The Advice Of Your Doctor May Reduce Your ICBC Claim
Car accidents unfortunately happen every day in Metro Vancouver, and we see more crashes this time of year with the shorter, darker, rainy days. As a result, we get accustomed to hearing accident reports on the radio, and seeing flashing ambulance lights drive by us on our commutes.
When people talk about getting a settlement for an ICBC claim, there is rarely any discussion about how the parties reached the settlement amount. The recent judgment in Castro v Krause, 2015 BCSC 2074, (http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2074/2015bcsc2074.html) provides a good review of some of the different issues the courts will consider when deciding what amount is fair and proper compensation for someone who has been injured in a motor vehicle accident. Ms. Castro, a 54-year-old woman, was injured in two separate car accidents, the first in 2010, and the second in 2012. From the first accident she suffered six fractured ribs, an injury to her head, bruising to her arm, right leg and chest, and soft tissue injuries to her neck, shoulder, and spine. She went on to develop chronic pain and major depression. In the second accident, Ms. Castro’s injuries from the first accident were aggravated, particularly the injuries to her neck, shoulder, and spine.
When determining the appropriate amount of compensation for an ICBC claim, the court will consider different categories of loss, including income loss, out-of-pocket expenses, and compensation for pain and suffering (also called general damages or non-pecuniary damages). In Ms. Castro’s case, the court found her damages for pain and suffering should be $90,000. In reaching that number, the court considered her age, the nature of her injuries, the severity and duration of her pain, the extent of the resulting disability, her emotional suffering, and whether there had been an impairment in her quality of life. After making the determination of $90,000, the court then reduced the award by 20% because the evidence showed Ms. Castro did not follow all of the advice of her physicians – to take anti-depressant medications, attend counselling sessions, undertake an active exercise program, and in hiding some of her symptoms from her family doctor. In legal terms, this is called a “failure to mitigate”.
The judgment also provides a good review of the considerations in an award for loss of future income and loss of future income-earning capacity. To be eligible for this type of award, the plaintiff must prove there is real and substantial possibility of a future event leading to an income loss. Once this has been done, the court will quantify the loss by considering either the earnings approach (used when the loss is easily measureable) or the capital asset approach (to be used when the loss is not as easily measureable). In Ms. Castro’s case, because she had changed her employment after the second accident, from a waitress to a health care aide, her loss was not easily measureable. As a result, the capital asset approach was used. This approach involves an assessment of the following factors:
1. Has the plaintiff been rendered less capable overall from earning income from all types of employment;
2. Is the plaintiff less marketable or attractive as an employee to potential employers;
3. Has the plaintiff 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. Is the plaintiff less valuable to herself as a person capable of earning income in a competitive labour market?
Ms. Castro was awarded $50,000 for loss of future income-earning capacity, which was reduced by 25% for the possibility that she would not, in the future, follow the advice of her physicians, as she had failed to do in the past.