Van Den Hemel v. Kugathasan,2010 BCSC 1264
September 9, 2010- The injury claimant in this case was a passenger involved in two car accidents in Richmond, British Columbia. ICBC admitted fault on behalf of the other drivers. Judge Stewart made his decision within two weeks of hearing the case which appears to be a welcome change consistent with the purpose of the new changes to our rules of court.
The evidence was a jumble as to how much force was applied to the vehicle in which the claimant was seated. In each car accident the other driver testified to the effect that the impact was next to nothing. In each case the injury claimant testified that the impact was significant. the cost of repairing the claimant’s was $665.19 in the case of the first motor vehicle accident and $1,421.00 in the second motor vehicle accident.
The Judge considered the whole of the ICBCs’ attack on the injury claimant’s credibility and rejected it. Judge Stewart went on to explain:
” “Credibility” has become a confusing term as its elements are not particularized and whether it encompasses accuracy is in the eye of the beholder… The more precise “testimonial reliability” and its elements – perception, recollection, narration and sincerity – offers up a better analytical tool. “
As a result of the injuries the court found her pre-existing depression was worsened and she developed chronic pain, loss of mobility, sleep disturbance, fatigue, emotional and cognitive distress, loss of capacity for lifting, sitting or standing and a cause of her having developed a lowered pain threshold. The court awarded the claimant $75,000.00 for pain and suffering, $40,000 for past loss of income, $100,00 for loss of earning capacity, $10,000.00 for loss of housekeeping capacity and out of pocket expenses of $820.00.
I note the case proceeded on the assumption that no thought had to be given to apportioning the award of damages between the two car accidents . And as obiter the Judge stated, “Nor could it be in the circumstances that obtain here for the evidence reveals injuries which are, for the purposes of the law, indivisible: Bradley v. Groves, 2010 BCCA 361.” Posted by Mr. Renn A. Holness
Issue: Should insurance companies like ICBC that defend at fault drivers be punished for negligently attacking a claimant’s credibility?