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ICBC Loses over a Glare of the Eye

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Prior Consistent Statements are Admissible to Rebut ICBC Claims of Fabrication

This incredible win by the injury claimant on appeal reaffirms the evidence rule that prior consistent statements of injury claimants are admissible to rebut an allegation of recent fabrication (T. v. ICBC et al, 2016 BCCA 373).  Prior consistent statements can include ICBC dial-a-claim reports, signed ICBC statements, online ICBC statements, 911 calls, police statements, oral statements to witnesses, paramedics, fire crew, and health care professionals.

The judge was wrong about the evidence of the claimant in terms of whether she saw the eyes or look on the defendant’s face with him driving towards her as she thought he was trying to kill her. The claim that the other driver glared at her before driving toward her was relied on to establish her claim for post-traumatic stress disorder, PTSD. In finding that her evidence was a complete fabrication, the judge failed to address the corroborating evidence of other witnesses which created an artificial conflict in the evidence.

 The appellant was actually involved in two motor vehicle accidents and claimed compensation for  post-traumatic stress disorder (“PTSD”), major depressive disorder, and a mild traumatic brain injury as result of one of the car accidents. The personal injury case proceeded for 33 days before a judge alone. The Insurance Corporation of British Columbia (“ICBC”) appeared as a third party pursuant to s. 95 of the Insurance (Vehicle) Act, RSBC 1996 c. 231. ICBC.

 The trial judge disbelieved the claimant’s evidence, in particular with respect to whether she suffered PTSD as a result of the car accident. In reasons indexed at 2015 BCSC 359,(what not do in your ICBC claim), he awarded her $25,000 for pain and suffering, $10,450 for past wage loss, zero for future wage loss and $592.30 for special damages. This award was less than advances previously paid by ICBC, and as a result, the claim was totally dismissed. He also awarded special costs to the defendant/third party from the date of the filing of the first set of pleadings. The costs reasons are indexed at 2015 BCSC 1502.

In finding the prior consistent statement of the ICBC claimant admissible in these circumstances, the Court of Appeal comments:

[28] The evidence was that both [the claimant] and Ms. G. testified to noticing the eyes or look of the defendant before speaking to Mr. L.. The prior consistent statement of [the claimant] to Ms. G. is admissible to rebut an allegation of recent fabrication, or as part of the res gestae. The trial judge completely rejected the evidence of [the claimant] on the  basis that she did not see the face or eyes of the defendant and invented this story as a result of speaking with Mr. L.. However, he did not reject, or address, the evidence of Ms. G. who said that [the claimant] mentioned seeing his face (as did she) before speaking to Mr. L..

[29] Unfortunately, the trial judge’s reasons do not withstand scrutiny on this critical point in terms of his finding of fact. It is apparent from a review of the evidence of the three witnesses that the trial judge misapprehended the evidence with respect to what [the claimant] saw and when she saw it.

The trial judge then went on to discount all the medical opinion because the expert reports relied on a version of events that differed from the facts he found, and in particular, the “triggering event” for PTSD, which he found had not been proven. He also wholly disregarding the evidence of 15 witnesses who supported the opinions of the experts.

No doubt this claimant had significant problems with her case to begin with but the Court of Appeal was left with no choice but to order a new trial:

[54]  In my view, the cumulative effect of these errors can only lead to a new trial. I am well aware that there were clearly issues with [the claimant’s] credibility. She gave a differing version of events to the medical doctors; she manipulated different organizations to ensure she had multiple sources of income; she made an implicit threat to the witness Ms. A. during trial; and her evidence in terms of the extent of her injuries was contradicted by surveillance videos.However, it is also clear, in my view, that the errors by the trial judge are of such import that the only resolution is a new trial. As such, I do not find it necessary to address the remaining grounds of appeal. I would allow the appeal, set aside the order dismissing the claim, set aside the order for costs and special costs and order a new trial. I would order that the costs of the first trial be resolved at the conclusion of the second trial.

I don’t think we have heard the last of this case!

Posted by Mr. Renn A. Holness, B.A. LL.B.

Tags: 911 calls, icbc case examples, ICBC dial-a-claim, ICBC Injury claim, ICBC Statement, Prior Consistent Statements, Rules of Evidence

One responseICBC Loses over a Glare of the Eye

  • Fatally Flawed Medical Malpractice Award Overturned on Appeal | Holness Law Group

    February 3, 2017 5:19am

    […] Where a principal issue on a trial is credibility [or I would say, reliability] of witnesses to the extent that the evidence of one party is accepted to the virtual exclusion of the evidence of the other, it is essential that the findings be based on a correct version of the actual evidence. Wrong findings on what the evidence is destroy the basis of findings of credibility [or reliability].( Bennett J.A. in Tambosso v. Holmes, 2016 BCCA 373) […]

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