Court Awards Our Client over $600,000 After Rejecting ICBC’s Arguments

Posted on by Mussio Goodman

Mussio Goodman is pleased to announce our recent achievement following a ten-day trial in the BC Supreme Court. In Bloomfield v. Berg, 2023 BCSC 1089, the Court awarded our client $601,000, significantly more than ICBC’s final offer of $424,000 before trial.

Our client was a 31-year-old nursing student at the time of the accident. He sustained injuries after being struck by a vehicle driven by the defendant while walking across the street. Our client suffered a multitude of injuries from the accident, including to his neck, shoulders, back, right arm, right knee, right ribs, right hip, and headaches. Our client also faced numerous psychological troubles, including insomnia, anxiety, and depression, all of which had a devastating effect on his personality and social life.

At trial, ICBC argued that our client’s damages should be reduced because he supposedly failed to mitigate his injuries. ICBC took this stance on the basis that our client should have gone to further doctors when his surgery was unsuccessful, and undergone specific treatments for his psychological symptoms. ICBC made this argument despite the multiple other doctors and treatments our client already pursued for his symptoms. The Court agreed with Mussio Goodman’s independent psychiatrist who noted our client was limited in the treatments he could pursue due to his ongoing symptoms, and firmly disagreed with ICBC:

[130] With respect to Dr. Muir’s evidence that a lack of insight and avoidance [of therapy] result from Mr. Bloomfield’s somatic symptom disorder, Mr. Berg submits that there is no evidence that Mr. Bloomfield was unable to seek out and participate in therapy.

[132] I am not satisfied that Mr. Bloomfield acted unreasonably in not pursuing further surgery for his hip pain or psychotherapy. I accept the evidence of Dr. Muir that Mr. Bloomfield’s somatic symptom disorder impacted his ability to take advantage of potential therapies. […]

[133]   In conclusion, I do not find that Mr. Berg has met his onus of proving that Mr. Bloomfield failed to mitigate his damages and therefore decline to make any deduction to Mr. Bloomfield’s damages award on this basis.

Further, ICBC took the stance that our client’s damages for loss of earning capacity should be reduced. This position was partially based on a hypothetical argument that despite his serious injuries from the accident, our client was already prone to hip pain decades from now, which would have limited his earnings anyway. We directed the court to see that this argument is entirely hypothetical and has no basis in reality. The Court agreed, noting:

[89]      The medical evidence establishes that primarily as a result of his pain symptoms, compounded by his somatic symptom disorder, Mr. Bloomfield has been rendered less capable overall of earning income from all types of employment. […] For the same reasons, Mr. Bloomfield has lost the ability to take advantage of all job opportunities that might otherwise have been open. Finally, I am satisfied that as a result of his reduced capabilities, Mr. Bloomfield, who previously considered working in a number of areas a nurse, is less valuable to himself as a person capable of earning income in a competitive labour market.

[90]      I am satisfied that Mr. Bloomfield has demonstrated a real and substantial possibility of diminished earning capacity which will cause income loss.

This case is illustrative of the inconsiderate positions ICBC will take, such as arguing that an injured person should be pursuing endless treatments before they are entitled to appropriate compensation. Further, it demonstrates the hypotheticals ICBC will resort to in order to undermine an injured person’s damages claim. Mussio Goodman has extensive experience advocating for our clients in the face of ICBC’s strategies.