At issue in every ICBC claim is the nature and the extent of the injured claimant’s injuries caused by the motor vehicle accident and the effect they have had and will have on his/her function. The injured claimant has the burden of proving not only the injuries, but also whether the motor vehicle accident was the cause of these injuries. This is known as causation. There must be a causal connection between the injuries and the collision in order for the claim to succeed. For injured claimant’s who have a pre-existing condition, the defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond a de minimus (minimal/meaningless) range.
Once causation has been established, the role of damages is, so far as money is able, to place the plaintiff in the same position he or she would have been in had the injury not occurred—no better, no worse.
As outlined in a prior blog post, an injured claimant’s credibility is critical to any ICBC claim. This is especially true when the injuries are primarily subjective such as with soft tissue injuries and psychological injuries. Reliability in an injured claimant’s evidence is essential to determine the nature and extent of the injuries. This is because with subjective injuries, the medical practitioners rely almost entirely upon the injured claimant’s own complaints and history as there is no objective evidence to verify this information. Therefore, if the injured claimant is credible, then his/her evidence about the subjective injuries will be considered reliable and trustworthy.
It is a common tactic of ICBC to attempt to undermine an injured claimant’s credibility. If his/her credibility is successfully attacked, then the trial judge will be hesitant to accept the injured claimant’s own evidence about the injuries and impact they have had on his/her life. If ICBC successfully attacks credibility, then this will in turn impact the claim significantly.
In Mollica-Lazzaro v. Leung 2021 BCSC 4, the 44 year-old female injured claimant suffered an aggravation of her pre-existing chronic pain issues in a motor vehicle accident. In the years leading up to the collision, she testified that she suffered from intermittent pain in her neck, shoulder and low back. When her symptoms flared, she regularly attended therapy. Despite her pre-existing chronic pain, she led a very active and unrestricted lifestyle.
At issue was the injured claimant’s credibility. ICBC argued that she was not credible because she provided inconsistent information regarding her pre-existing injuries and her accident-related injuries. In cross examination, ICBC highlighted major inconsistencies in her evidence about her pre-existing conditions, the collision itself, and the effects and duration of the injuries she suffered in it. She initially testified that she had significant and continuous accident-related difficulties with her neck, upper back, and lower back. This evidence was inconsistent with her her personal notes and what she told her various treating practitioners. When these inconsistencies were put to her on cross examination by ICBC, she struggled to provide a persuasive response. When pressed, she was reluctant to agree to the inconsistencies, changed her evidence, was evasive and/or gave vague responses. Ultimately, she conceded that her neck and upper back symptoms fluctuated and were not constant, contrary to what she told her doctor. She also confirmed that she had chronic low back pain for 20 years before the motor vehicle accident and that those symptoms fluctuated depending on her activities. Also, contrary to what she told her doctor, she admitted in cross examination that her current post-accident low back pain was generally the same as it was before the accident.
ICBC’s successful attack on her credibility severely undermined her expert evidence. As a result, the amount of her trial award was much less than her total claim. In relation to the impact that her credibility had on her claim, the trial judge stated:
“The expert medical evidence was based to a significant degree on the plaintiff’s self-reporting. In forming their opinions, all experts assumed the history that the plaintiff gave them fairly represented her health status. I have already stated the concerns I have with the plaintiff’s evidence. Having heard the experts testify and having reviewed their reports, I conclude that the history she gave them—upon which they based their opinions—did not paint an accurate picture of either her pain levels or her functionality pre and post-Collision.
In sum, while I am satisfied that the Collision aggravated her pre-existing symptoms to some degree, I am not persuaded that the Collision resulted in the degree of difficulty and reduced function that she suggests.”