Case Summary: Kler v. Kumar, 2023 BCSC 1515
The Supreme Court of British Columbia recently provided its decision in Kler v. Kumar, 2023 BCSC 1515.
The Defendants admitted liability for the car accident that injured our client. Although they acknowledged that the Plaintiff was injured, the Defendant argued that our client was either exaggerating the extent of his back pain or that he failed to mitigate his injuries by trying to get better. They argued that he did not do what was medically required for him to improve his pain, which, thereby, placed the responsibility for his continuing injuries – at least partially – on himself. These are arguments Defence counsel often raises at Trial.
The Plaintiff did not want to follow through with spine surgery given potential complications. The Court disagreed with this decision, and found that our client should have had surgery. This reduced his award.
The Defence also argued that our client’s back pain was not caused by the accident and was, instead, caused by a pre-existing condition. The Court disagreed:
[3] A key issue at trial was the cause of Mr. Kler’s low back pain and the neurological symptoms he experiences in his legs and feet. The neurologist who testified at the request of the defendants says Mr. Kler’s condition is caused by degenerative changes in his vertebrae and that it would have occurred irrespective of the accident. The neurosurgeon who testified at the request of the plaintiff says his back pain is caused by an isthmic spondylolisthesis (a vertebrae slipping out of place due to a pre-existing par defect) at L5-S1. The neurosurgeon says the pre-existing pars defect likely would have remained asymptomatic but for the accident. For the reasons that follow, I prefer the expert evidence tendered by the plaintiff on the issue of causation, and the award of damages reflects the contingencies offered by the neurosurgeon.
The topic of pre-existing conditions often comes up in personal injury cases. The Defence typically argues that a Plaintiff would end up with the same pain, regardless of an accident occurring.
The Court accepted the Defendants’ argument that the Plaintiff did not do all that he could to improve his conditions, but still awarded over $271,000, which was a clear win for the Plaintiff. The damages were broken down as follows:
- Past Loss of Earning Capacity: $63,750
- Future Loss of Earning Capacity: $42,500
- Future Loss of Housekeeping Capacity: $45,000
- Non-Pecuniary Damages: $107,100
- Future Cost of Care: $5100
- Special Damages: $8147
- TOTAL: $271,597
It is important for people to understand that even if an insurance company argues that they have a pre-existing condition, they still may be able to fight back. Furthermore, this case illustrates that, even if an insurance company disagrees with an accident survivor’s treatment approach, they could still be entitled to compensation.
This is another successful win for our team, and another example of ICBC leading a case to trial to their own detriment.
We are awaiting a decision on Trial costs. The firm will be arguing that our pre-trial offer should have been accepted by ICBC and, as a result, our client should be entitled to double their legal costs.
