In this multiple car accident injury claim(Kailay v. ICBC, 2011 BCSC 263) ICBC, the Insurance Corporation of British Columbia, was seeking an adjounment due to new developments in the case which included a recent pregnancy and complicating psychological overlay arising from it. The ICBC lawyer asked for more time to prepare the defence case as they have to respond to fresh opinion that the claimant is at greater risk of post-partum depression and its consequences, the possibility of traumatic stress and depression from the delivery itself, complications from her diagnosed obsessive compulsive disorder, and exacerbation of her chronic pain.
Master Baker was satisfied that the court has jurisdiction to make an order for conditions of an adjournment of a trial that include money advances, whether to meet specific costs and expenses, or as simple advances on likely awards for pain and suffering . However the court did point out that in prior cases fault for the accident was either actually or virtually admitted. This was not such a case as ICBC disputes that the claimant met the statutory requirements for an action involving an unknown driver. Interestingly, the court concluded:
“I cannot decide liability at this stage, but that does not preclude some degree of assessment. I think Ms. Kailay’s case strong enough at this stage that the defence should not preclude an advance. Similarly I expect that the possibility of her being insured through Manulife can be sorted out at trial.”
The court directed that the following conditions of the adjournment of the trial:
1. The defence, ICBC, will fund up to 30 further counselling sessions at up to $200.00 per session;
2. The injury claimant will receive $20,000.00 toward her pain and suffering claim ;
3. The defence, ICBC, will advance $10,000.00 toward the claimant’s costs incurred to date, including, of course, her experts’ fees; and
4. The injury claimant will give her undertaking that, in the event her claim fails at trial or that advances to date (including the above) exceed the amount awarded by the court, she will repay the advances as required.
Note that Serban v. Casselman is a leading authority respecting court ordered money advances in personal injury cases. Posted by Mr. Renn A. Holness