If ICBC argues that my recovery has been hampered by my lack of motivation, will my compensation be affected? What if I am struggling with a psychological disorder?
In reasons released last week by the BC Supreme Court, Kweon v. Roy 2016 BCSC 2305. Ms. Kweon was a university student injured as a passenger in a MVA when she was 20 years old. The crash was caused by a left-turning vehicle that was in a police chase, and lost control making a turn, causing it to smash into the vehicle in which Ms. Kweon was a passenger. Both the other driver and the chasing police officer were found liable for the crash and her injuries – 85% and 15% respectively.
As a result of the crash, Ms. Kweon suffered a mild traumatic brain injury, complex pelvic fracture, back pain, and developed a major depressive disorder. She had been enrolled in her third year at UBC, but her injuries forced her to withdraw. She was awarded $175,000.00 for her pain and suffering, with Mr. Justice Skolrood rejecting ICBC’s arguments about her lack of motivation:
[186] I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward.
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[190] ICBC submits that the proper award is in the range of $125,000-150,000 on the basis that her injuries have improved significantly. It submits that the primary factor contributing to the fact that her life has stalled is her own lack of motivation
[191] The RCMP made minimal submissions on the quantum of damages other than to say that an award in the range of $150,000-200,000 is reasonable.
[192] Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.
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