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How Much Whiplash Compensation from ICBC when Headrest Not Adjusted


Putting the true value on whiplash claims when ICBC and other auto insurance companies offer $5,000, $10,000, $15,000, $20,000 or more can be a challenge for a personal injury lawyer in British Columbia, not to mention claimants without lawyers. Today’s  topic is how headrest use can impact the value of your soft tissue injury, or whiplash claim. This can be an important consideration when trying to settle with ICBC for whiplash after a car accident.
The headrest was designed to reduce injury and the whiplash prevention campaign (WPC)says that a properly adjusted head restraint can reduce the chance of whiplash associated injuriesby 35%.  WPC says whiplash injuries account for approximately 26% of all injury claims from rear-impact car accidents and in my experience as a personal injury lawyer, settling these cases with ICBC can be troublesome. Despite the best adjusted headrest,  the extreme changes in force in a rear end collision can cause damage to the tissues in the human neck. Poor headrest design may also be to blame and may increase  neck injury. The head of the person sitting in a stopped vehicle can also extend over the head restraint and collapse it as the neck snaps into full extension when hit from behind.
The rear impact collison is the obvious cause of neck pain after a car accident and the negligent drivers are held to account for these soft tissue injuries by way of money compensation covered by mandatory insurance with ICBC. 
When it comes to proper headrest adjustment the Insurance Corporation of British Columbia, ICBC, in my experience will often refuse to pay or settle for any portion of a whiplash injury that was due to negligent use of a headrest, despite the difficulty in proving that had the headrest been used properly that the injury would have been less. And in the rare event there is a court reduction in a case it may, for example change an award of $25,000.00 for pain and suffering down to $21,250.00. So, generally the at fault driver will be found to be more blameworthy than the injury claimant.
It is difficult for ICBC to successfully blame an injury claimant for negligent use of a headrest as in this whiplash money award headrest case(Fleetwood v. Kwantes). The defendants argued that the claimant was contributorily negligent in that, as admitted by her, she failed to adjust her headrest. “In my view, the evidence did not establish that the proper positioning of this headrest would have prevented or reduced the extent of the plaintiff’s injuries. Although Mr. Baker testified that if her headrest had been adjusted properly that she would not have suffered any injury, this was not supported by the other evidence. In particular, an article that was presented in evidence which reported that flexion-extension injuries could occur at lower level speed collisions, did not mention that a causal factor in the injuries was an improperly positioned headrest.”(Judge Sinclair Prowse). Assuming that the proper positioning of the headrest may have at the very least reduced the extent of the injury, the evidence fell short of proving that the claimant was contributorily negligent and she was awarded $22,500 for her whiplash injury, taking into account her already pre-existing disabling condition.
In most cases for ICBC to have a whiplash award reduced for contributorily negligent, the evidence must establish that the injured party did not act in his or her own interest by taking reasonable care and so contributed by his or her want of care to the injury. The claimant’s negligence will depend on whether he or she had prior knowledge of the danger. Don’t compromise or settle before you speak to an experienced lawyer if headrest use has become an issue in your personal injury case. Also, watch my short video about how to settle your ICBC claim.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A., LL.B.

Tags: How much is my ICBC claim worth?

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