Evaluating how much your ICBC injury claim is worth for chronic pain will now depend on the date of the accident. Attorney General David Eby
has artificially defined chronic pain as a “minor injury” for accidents after April 1, 2019 to save ICBC money. Mr. Eby has clogged the courts by encouraging ICBC to low ball and deny claims. The David Eby minor injury laws do not apply to this case.
The claimant was driving northbound on 160th Street heading towards 100th Avenue in Surrey, BC. The claimant pressed on his brakes to stop and was rear ended. The photographs of his car show damage to the point of no-repair. However, according to the ICBC reports the claimant’s vehicle sustained minor damage.(Welder v. Lee, 2019 BCSC 1328)
The car accident caused neck pain, headaches and cognitive issues, including memory problems. As a result the claimants said he had to stop working as a tower crane operator after a lengthy and reputable career in the field. ICBC conceded he was injured but only “minor injuries” and a very brief period of disability. ICBC claimed complete recovery from the injuries, despite medical evidence, and full ability return to work as a crane operator.
The judge found there was no other logical explanation for his loss other than the car accident injuries. Due to his injuries he was not able to develop more contracts and secure higher-paying work opportunities.
The award is summarized as follows:
|Head of Damage||Award|
|a. Pain and Suffering (non-pecs)||$90,000|
|b. (i). Past Loss of Earning Capacity||$110,000|
|c. (ii). Loss of Future Earning Capacity||$250,000|
|d. Costs of Future Care||$2,250|
|e. Out of Pocket Expenses (special damages)||$846|
The Judge provided a useful review of legal causation in the context of personal injury cases:
 The burden is on Mr. W to establish on a balance of probabilities that “but for” the accident he would not have suffered the injuries which form the basis of his damages claim. That burden is discharged where he demonstrates to the satisfaction of the Court that the defendant’s negligence was a part of the cause beyond the range of de minimis; there is no need for it to be the sole cause of the injuries: see Athey v. Leonati,  3 S.C.R. 458 at paras. 13-17, 140 D.L.R. (4th) 235[Athey]; Farrant v. Laktin, 2011 BCCA 336 at para. 9; see also Mirsaeidi v. Coleman, 2014 BCSC 415 at paras. 49, 50.
 The “but for” test is an inquiry into factual causation, and its proper discharge is assessed on a “robust common sense fashion” with no requirement for scientific evidence of the precise contribution the defendant’s negligence made to the injury: Clements v. Clements,2012 SCC 32 at para. 9.