In a recent blog post, we discussed the impact an injured claimant’s lack of credibility had in the dismissal of his ICBC hit and run claim at trial. Jacqueline Small, a partner with Holness and Small Law Group, was interviewed by Canadian Magazine on this ICBC credibility case.
Credibility is always a paramount consideration in all ICBC claims. Credibility in this context is the reliability, plausibility and believability of the injured claimant’s own evidence about the accident and his/her injuries. If an injured claimant is found not to be credible, then this will call into question all of their evidence and their version of events. It will also call into question a medical expert’s opinion if that opinion is based either entirely or in part on what the injured claimant told the expert. In other words, if the information provided to the medical expert is faulty and if the medical expert has relied on this to form an opinion, then the opinion may be considered faulty.
A recent case that proceeded to trial is another illustration of the importance of credibility to an ICBC claim.
In Johal v. Bhullar 2021 BCSC 427, the 28 year-old female injured claimant was injured in 2 motor vehicle accidents in 2015 and in 2018. Before the collisions, she planned to pursue a career in law enforcement with the Vancouver Police Department. In fact, she was preparing to submit her application to the VPD when the first motor vehicle accident occurred. She testified that her pain from the accidents was such that she did not believe she would pass the VPD physical ability testing, so she decided to delay her application. She applied a year after the first motor vehicle accident and she was successful in becoming a VPD police officer.
A major issue in the trial was the injured claimant’s credibility. As the trial judge correctly pointed out, in personal injury actions the most important witness is the injured claimant. An injured claimant who accurately describes her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find her evidence to have been credible and reliable.
The trial judge concluded that the injured claimant was not credible pointing to several areas of her evidence that were confusing, speculative and inaccurate. She was found to not be forthcoming with her non-accident related health issues. It was noted that she had no difficulty reporting her work-related injuries to the VPD while not reporting any of her accident-related pain or limitations. Her description of the severity of the motor vehicle accidents was not believable and it was in conflict with the minimal damage sustained to the vehicles and the evidence of the other drivers on the velocity of the impact. In considering all of the evidence, the trial judge concluded that the injured claimant was not a credible or reliable witness regarding the extent and longevity of her accident-related pain. He also did not find her a credible witness regarding significant aspects of her evidence and he did not believe that she continued to experience pain attributable to the motor vehicle accidents.
At trial, the injured claimant advanced a significant claim in the amount of 1.5 million. Due to her lack of credibility, the majority of her claims were not accepted and she was instead awarded a minimal amount of compensation (approximately $46,000.00) due to the finding that she not credible.
See the Vancouver Sun article on this interesting case on ICBC credibility.