The following personal injury case will be used as a case study into what not to do as a personal injury claimant. Almost everything a personal injury claimant should not do after a car accident, is contained in this injury case (T. v. ICBC, 2015 BCSC 359).
The trial judge should be commended, if not compensated in damages, for having to sit through 7 weeks of prolonged and painful evidence arising out of two motor vehicle accidents which occurred in Whistler and Squamish. The claim was for pain and suffering, past and future loss of income, costs of future care and special damages. Her physical injuries included neck and back pain, jaw pain, and pain in her hips and legs. The most significant injuries claimed were post-traumatic stress disorder, depression and mild traumatic brain injury.
The judge awarded $25,000 for pain and suffering arising out of the two car accidents. The injuries from the first accident were found to have largely healed within three to four months. The second accident injury, soft tissue in nature, healed within two months, according to the judge. Any ongoing symptoms were found to be most likely caused by a subsequent slip and fall at the Horseshoe Bay ferry terminal.
Five important things not to do when making an ICBC injury claim :
1. Never mislead a healthcare provider about level of activity after an injury
In this case, statements made to medical doctors about the claimant being housebound after the first accident were simply not true. There was overwhelming evidence of her lifestyle following the first accident, much of which was found in the 194 pages of her Facebook postings. There was also evidence from a friend that the claimant participated in concerts, large parties, hiking, snowboarding, and many other activities.
2. Don’t misstate ability to work in order to get disability benefits
In this case, the fact that the claimant had completed numerous applications for benefits showed she understood completely what she had to do to be able to convince the government, a large insurance company and a small business loans organization keep giving her money. As the judge pointed out:
On many occasions she would be submitting totally contradictory applications to different agencies or companies so as to be able to extract as much as possible from them without having to work. She fully understood what she had to do.
Her failure to return to work made it unrealistic for the judge to consider more than 2 months of past wage loss. The evidence was clear that the claimant considered herself able to work just one month after the accident. Amazingly, the claimant still sought past income loss in an amount of $207,500 at trial. The Judge awarded $10,450.00.
3. Do not use evasive tactics to respond to questions on cross examination
The consistent aspect of the claimant’s evidence was her argumentative manner, her unwillingness to provide direct answers to basic and simple questions and her avoidance of the truth. The judge gives numerous examples of this in the case stating,
Also, at trial, she used numerous evasive tactics to respond to almost all questions regarding these efforts. She would at first deny, (in some cases attempt to contradict the clear intent of documents submitted by her), ask for the question to be repeated numerous times, state she could not recall, etc. It took a mind that was fully aware of her circumstances to be able to manipulate these organizations.
4. Never threaten a witness
The claimant left a left a voice mail message for her friend that was to testify for ICBC two days before the witness was to take to stand. This message was played in court and a recording of the same was filed as an exhibit. The message was an attempt to discourage her friend from attending to testify at the trial. The voice mail message clearly implied that an indiscretion by witness during the time the two women were often “partying” together and having “wild times” had been mentioned in the testimony of a previous witness at the trial when in fact there had been no such evidence. The witness understood the telephone message to be a threat and was clearly intended to discourage the witness from testifying.
5. Never , NEVER feign injury in Court!
The court had many hours to be able to assess the claimant’s demeanour. At the opening of the trial the lawyer for the claimant asked the court to limit the testimony by the claimant from 90 minutes to two hours per day so the plaintiff could avoid fatigue. For several days of her testimony, the judge permitted the claimant to testify for half days, only to notice that she was not having difficulty with her memory and concentration. The judge subsequently had to order the continuing testimony of the claimant to be heard over the full court day.
The claimant exhibited considerable physical discomfort, rarely turning her head to either side. “When turning towards counsel, to the court or to pick up a document binder, [she] would turn her entire body while keeping her neck stiff.” However in hours of video shown to the judge her range of motion and ability to move freely was readily apparent, leading the judge to the conclude that the stiffness of movement during trial was a considerable exaggeration.
Claimant’s need to be aware that judges are entitled to accept some, all or none of the evidence of any witness, including the claimant. In this case, the claimant was not a credible witness and was found to have exaggerated the extent of the injury she suffered.
The real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
Issue: Should the Judge have Dismissed this claim altogether?