Case Summary: Klimek v. Lockhart, 2023 BCSC 582

The British Columbia Supreme Court recently provided its decision in the case of Klimek v. Lockhart, 2023 BCSC 582. This case was a question of damages arising from a car accident that occurred on April 3, 2017.

Our client’s vehicle was rear-ended while stopped at a red light in Surrey. She injured her neck, shoulders, and back. She also experienced frequent headaches as a result of the accident.

ICBC claimed that she was overstating her accident-related injuries and the impacts they had on her life. ICBC attributed her injuries to pre-existing issues associated with a previous accident in 2014.

When a Plaintiff has pre-existing issues, the Court is tasked with predicting what may have happened to them had it not been for the accident. This is a tough task that requires speculation about a hypothetical situation.

There are specific cases that allow the Court to base contingencies on these events. The Court may determine the degree to which pre-existing conditions contribute to the Plaintiff’s current medical complaints and reduce their award by that attributed percentage. This method for determining compensation can be applied to different heads of damages.

Even though a client may have pre-existing issues caused by past events or previous accidents, they may be entitled to large awards, even after the reductions are applied.

Causation

The Defence argued that our client was unable to sufficiently demonstrate a causal link between her current symptoms and her most recent rear-end collision, claiming that any symptoms directly related to her 2017 accident were resolved within 18 months of the collision. To support the argument that our client’s symptoms were the related to a divisible pre-existing condition from her previous accident, the Defence cited the following:

• The people treating the Plaintiff reported that she was doing well and was ready to return to work after only a few weeks following her accident
• The Plaintiff claimed to have taken less pain-killing medication after her most recent accident than she had after her first injury-causing collision in 2014
• After the most recent collision, the Plaintiff made less frequent complaints about pain to the people treating her than she did in the period between her two accidents

Since our client may have experienced her current symptoms had she not been involved in the most recent accident, we agreed that the Court should make a reduction in damages of 20% as a contingency. To make its final determination, the Court relied on Corness v. Ng, 2022 BCSC 334 (another case argued by Preszler Injury Lawyers),  in which the Court determined that the “high-water mark” for such reductions should be a contingency of 25%.

The Court provided the following opinion:

[44] However, she acknowledges that her pre-existing condition justifies a reduction of 20% from the damages award to reflect the real and substantial possibility that she would have experienced her current symptoms anyway. She says that a reduction of 25% should be considered the “high-water mark”, citing Corness v. Ng, 2022 BCSC 334.

…

[60] In any event, the defendant’s submission fails to account for the intermittent nature of the condition brought about by Ms. Klimek’s injuries. She is susceptible to periodic flare-ups which, by their nature, will wax and wane over time. This is not a case in which there is no objective evidence of lingering symptoms. Dr. Simonett’s report lends support to their existence, as does the testimony of Ms. Klimek’s daughter, a co-worker and a close friend, each of whom have observed her in pain and were not challenged on those observations. There was also evidence, including from Ms. Klimek herself, that the pain became qualitatively worse after the subject accident.

Award

The court awarded our client the following amounts while considering contingency reductions:

General Damages:

[78] Having considered those authorities in light of the evidence in this case, I am awarding general damages in the gross amount of $115,000. However, I am reducing that award by 25% to account for the real and substantial possibility that the same or similar symptoms would have manifested themselves anyway. I am satisfied that the likelihood of that possibility is higher than the 20% Ms. Klimek has proposed and belongs closer to the higher end of the range, given the history recounted above.

[79] On that basis, the net award is $86,250.

Past Wage Loss:

[87] I am therefore awarding her the gross amount of $4,007.12 + ($7,242.55 – 25% = $5,431.91) = $9,439.

Future Earning Capacity:

[108] This is not a case in which the value of the future loss of earning capacity is easily calculated. It follows that a capital asset approach should be used. After accounting for those further reductions that I have identified, I have concluded that the appropriate award is half of the amount claimed, or $150,000, which is just over two years of Ms. Klimek’s posited increased salary.

The court made additional awards of $30,000 for the plaintiff’s lost housekeeping capacity and $5,007 in special damages.

The total amount awarded to our client was $280,696.