The claimant was rear-ended in a car accident and alleged he suffered chronic pain, with physical and psychological consequences, arising from neck and back injuries. The claimant had a longstanding stuttering condition since he was a young boy. The cause of this condition remained unknown and he continued to stutter to the date of trial (Karim v. Li, 2015 BCSC 498).
This case provides an excellent summary of the law of legal causation for ICBC injury claims, which is too broad a topic for today. However, the principles to be applied in assessing claims of psychological injury in ICBC and other personal injury claims can be neatly summarized as follows:
- The pain, discomfort, or weakness must be genuine;
- The psychological problems must have their cause in the defendant’s wrongful act and not be rooted in desires for sympathy or compensation or be such that the plaintiff could be expected to overcome them through his or her inherent resources;
- The psychological problems will be found to be subjective or internal if their existence or continuation stems from the plaintiff’s desire for their existence or continuation;
- Causation is not established unless the court can say whether the plaintiff really desired to be free of the psychological problems;
- Identification of the symptoms as “chronic benign pain syndrome” does not resolve the questions of legal liability or the question of assessment of damages;
- It is unlikely expert opinion can resolve the ultimate questions on which these cases turn;
- Psychological problems will attract damages where the psychological mechanism is beyond the plaintiff’s power to control and was set in motion by the defendant’s wrongful act; and
- Evidence of psychological problems must be of a “convincing nature” but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may suffice for the purpose.
When determining whether or not a psychological injury has occurred, some expert medical evidence is necessary. The judge or jury should not rely only on a claimant’s own perception of disability.
In this case the judge found that the claimant suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. The claimant was awarded $100,000 for pain and suffering. The total amount awarded can be summarized as follows:
Pain and suffering: $100,000
Past Loss of Income and Earning Capacity: $41,600
Loss of Future Earning Capacity: $ 100,000
Cost of Future Care: $16,960
Out of Pocket expenses: $2,119.73
Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.– working only for the injured, not ICBC.