Rear end car accident claim

This personal injury claimant was awarded over $700,000 after ICBC failed to take her injuries seriously following six “minimal damage”, also called by ICBC “low velocity”, motor vehicle accidents. ICBC relied on Dr. William Koch, a registered psychologist in B.C. to argue that the claimant had pre-existing psychological disorders not related to the car accidents. Dr. Koch spends more than 90% of his current practice doing medical-legal work, a significant portion of which is for ICBC (Kallstrom v. Yip,2016 BCSC 829). 

Much of Dr. Koch’s reports in this case were found to comprise advocacy on behalf of the defendants, insured with ICBC.  For example, he seized on the existence of an emergency room note respecting “chest wall pain” as supportive of pre-existing panic disorder.  Even though the note makes no reference whatsoever to any panic episode, he argues that chest pain is a “common symptom of anxiety attack” and hence the incident “could be” an instance of panic disorder.

Dr. Koch said at trial he thought his 2014 billings to ICBC were within the range of $189,000, but acknowledged on cross-examination that they might have been as high as $240,000. The Supreme Court judge was quick to point out that, “Dr. Koch’s opinion was completely discredited during cross-examination and I am unable to give any weight to his suggestion that [the claimant’s] problems stem from a borderline personality disorder and not from the MVAs.  Dr. Koch did acknowledge that his testing of [the claimant] produced reliable findings of clinically significant pain and depression.

ICBC  Minimal no Damage Car Accident Claims

For low velocity impact claims, ICBC used to overtly deny injury claims based on the damage to the vehicles, a reprehensible policy that appears to have been discontinued around 2012. However, covertly, ICBC remains fixed on the view that claimants cannot be injured in  minimal or no damage car accidents.  The Supreme Court of BC disagreed with ICBC and reiterated the current state of the law:

[329] Much scepticism, some might say cynicism, can accompany claims that significant injury has been sustained as a result of a minor MVA, and particularly so where there is little objective evidence of physical injury and where complaints of pain persist far beyond what most observers might consider to be “normal”.  It must be remembered, however, that not everybody has the mental or physical constitution of a rugby prop forward.

[330] In Boag v. Berna, 2003 BCSC 779, Williamson J. noted somewhat sardonically:

[12]      …I am aware that it is often inappropriate to equate the damages to a motor vehicle to injuries that may be sustained by occupants of that vehicle.  That a piece of steel is not dented does not mean that the human occupant is not injured.

[331]    And in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), Thackeray J. stated:

[4] I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court.  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

[5]  Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed.  The presence and extent of injuries are to be determined on the basis of evidence given in court.  Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

[6] In the case at bar the limited amount of motor vehicle damage is not, in my opinion, the yardstick by which to measure the extent of the injuries suffered by the plaintiff. … The extent will be decided on the evidence.

[332]     I agree with these points of view.  Whether the plaintiff has been injured and to what degree is something that must be determined on the evidence in every case.

[333]     The absence of objectively measurable physical injury does not necessarily mean that a plaintiff’s subjective complaints must be disregarded

As to the 6 car accidents: in MVA #1 the claimant was driving north on Hornby Street and was stopped in traffic south of Robson Street when her vehicle was suddenly struck from the rear. The second MVA occurred near the intersection of Oak Street and 7th Avenue in Vancouver. The 3rd MVA happened at the intersection of Smithe and Hornby Streets in Vancouver. Car accident #4 occurred at an Esso gas station at West Broadway and Hemlock Street in Vancouver. In MVA #5 the claimant was driving eastbound on South West Marine Drive near Fraser Street when a vehicle exited the Superstore gas bar and merged into the claimant’s lane striking her right front fender. And finally, MVA 6 occurred at the intersection of Granville Street and 16th Avenue in Vancouver.

All of the at fault drivers were insured by the same liability insurer, the Insurance Corporation of British Columbia ( ICBC). The ICBC lawyer assured the judge that the claimant would be paid 100% of the award regardless of any outcome respecting several allocation. Therefore it was a waste of court time for ICBC not to have dispensed with the requirement for these minor adjustments.

The judge awarded $180,000  for pain and suffering but was obliged to make the adjustments so the individual judgments for pain, suffering and loss of enjoyment of life in each of the four lawsuits before the court would be less the following amounts for the following car accidents: MVA 1- $0; MVA 2 – $2,000; MVA 3 – $4,000; MVA 4 – $8,000; MVA 6 – $10,000.  The total award amounted to:

Pain and Suffering $ 180,000.00(before deductions)
Past loss of earning capacity:
(plus pre-judgment interest to be calculated)
$ 220,000.00
Loss of future earning capacity $ 245,000.00
Cost of future care $ 70,000.00
Out of Pocket Expenses $ 27,000.00
TOTAL $ 742,000.00

Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.- serving ICBC injury claimants for over 20 years.

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