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Kirby vs. Loubert

On March 28, 2018, the court delivered judgment on liability and damages in a motor vehicle collision that took place in Vancouver on March 4, 2009. The plaintiff was a parapalegic and incomplete quadriplegic at the time of the 2009 collision from an earlier crash. The court found that despite his pre-existing condition, he suffered extensive additional injuries in the 2009 crash included increased chronic pain, neurological injury and deterioration, loss of function in his arms and shoulders, post-traumatics tress disorder and depression, and a very serious pressure wound that developed by his tailbone. The plaintiff also testified that his marijuana consumption had doubled to manage his pain following the 2009 crash from 20g/day to 40 g/day. There was also evidence in the case from the plaintiff that ICBC had not treated him fairly and had cut off his benefits. In assessing the plaintiff’s claim, the court awarded him $140,000 for pain and suffering damages stating the following regarding his pre-existing paralysis:

[149] The fact remains that the injuries that I find the plaintiff did suffer were serious and have had a very significant impact on him; far greater than like injuries would have on a person who had not sustained the catastrophic spinal injuries that Mr. Kirby suffered. InFatin v Watson, 2018 BCSC 306, where the plaintiff was a 78- year-old man who had lost much of the function of his right wrist due to the exacerbation of a pre-existing asymptomatic degenerative condition, I referred at para 38 to authorities which acknowledge that in some respects, an impairment of movement may be more serious in a person of advancing years than it is with a younger person; see, for instance,Pingitore v Lum, 1994 CanLII 1050 (BCSC) at pp 11-12, andBardua v Han, 2016 BCSC 861 at para 43. The same is analytically true to an even greater degree, I find, in the case of a person like Mr. Kirby who has already been severely limited, and can afford little further impairment.

The full decision can be found HERE.

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