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ICBC Statement Rejected as Personal Injury Lawyers Win on Legal Caustion


As a legal advocate for the injured it is important to understand the difference between medical and legal cause in personal injury cases. This beyond de minimis car accident injury case (Paller v. Regan,2013 BCSC 1672)  illustrates this and also the importance of an ICBC statement after a car accident.  Statements made to ICBC  may be used against personal injury claimants later in litigation. In this case the ICBC statement was used unsuccessfully against the claimant to allege the accident could not have caused injury.
The facts of the car accident are quite simple. The claimant was  driving along a narrow, two-way street, in Vancouver and a van did not see the claimant’s car and accelerated into his lane, striking the rear passenger side door and wheel well. The claimant suffered from back and neck pain and one year after the accident he began experiencing symptoms of anxiety. The other driver denied that the claimant could have been injured in the accident and said the his symptoms were due to pre-existing osteoarthritis of the spine. Getting back to the basics of personal injury law  the Judge  pointed out:

[15]         The plaintiff [claimant] must establish on a balance of probabilities that the defendants’ negligence caused or materially contributed to an injury. The defendants’ negligence need not be the sole cause of the injury, so long as it is part of the cause beyond the range of de minimis. Causation need not be determined by scientific precision:  Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, and Farrant v. Laktin, 2011 BCCA 336, para. 9.

[16]         The most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in if not for the defendant’s negligence, no better or worse. Tortfeasors must take their victims as they find them, even if the plaintiff’s injuries are more severe than they would be for a normal person. This is the “thin skull” rule. However, the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway, sometimes called the “crumbling skull” rule, Athey v. Leonati, at paras. 32-35.

The ICBC statement the van driver gave said that he was only going 5 km per hour when the accident occurred. The ICBC doctor relied on this statement to say that the claimant could not have been injured in the accident. The opinion of the ICBC doctor was rejected by the Judge as was the reliability of the ICBC statement . The claimants evidence was accepted and his physical and emotional condition were found to have been caused by the accident. The successful injury claimant was  awarded  $85,000 for pain and suffering,  past wage loss of $7,869.87, $102,000 for  loss of earning capacity, for future care $4,510; and out of pocket expenses of  $1,262.64. The total personal injury award was $200,642.51.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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