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Plaintiff awarded $12,500 in ICBC Case for Neck and Shoulder Pain after Accident

In the recently reported case of Parmar v. Lahay, 2011 BCSC 1628, Mr. Justice Burnyeat awarded a plaintiff injured in a motor vehicle accident in October 2010 $12,500 in non-pecuniary damages. There was no claim for loss of wages or future loss of capacity. The plaintiff’s doctor recommended physiotherapy and the plaintiff took six sessions. The plaintiff complained that, despite the physiotherapy, his injuries had not improved much. In awarding the above-noted amount Justice Burnyeat noted that the plaintiff continued to suffer neck and shoulder pain thirteen months after the accident.


Legal Costs & Economic Realities in ICBC Accident Case:


In allowing the legal costs of the action, Justice Burnyeat noted the summary trial procedure used by the plaintiff and the availability of costs made the Supreme Court a “preferable and justified forum for this Action”. The judge also took into consideration the economic realities of an individual seeking “nominal damages” against an “institutional defendant”.

(written by Charles D. Jago)

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court. In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.


[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court. In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:


In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel. (at para. 14)


[12] I also adopt the statement of Humphries J. in Kanani, supra:


… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel. She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).


[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal. This must be contrasted with the institutional defendant and its unlimited resources. In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 97 of the Supreme Court Civil Rules is appropriate. In the case at bar, the application has taken approximately one hour.


[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.


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