The injury claimant in this ICBC bike accident case (Dempsey v. Oh, 2011 BCSC 216) was riding his bicycle on 16thAvenue in Vancouver when he collided with a panel van. In addition to scrapes and bruises, the claimant said he suffered soft tissue injury which were so debilitating that he could not perform his work as a real estate agent. The driver of the van admitted being at fault but denied that the claimant suffered much of an injury.
Causation and credibility were central issues in this personal injury case. Prior to the accident, the claimant had pre-existing back problems, including bulging discs, which were painful and at times debilitating. The van driver alleged that the claimant’s prior back condition caused the problems after the accident, and that the claimant was not a credible witness with respect to his condition both before and after the accident.
The court did not find the claimant to be a credible witness and said, “There is no reason to believe that he was more truthful about what occurred after the accident than he was about his condition before it.” The injury claimant downplayed his use of heroin and falsely stated that he had stopped using; greatly downplayed his back problems prior to the accident; the claimant’s testimony was glaringly and significantly different than the medical records; and the claimant was adamant that he played hockey up to the time of the accident but on cross-examination he agreed that he had given it up several years before the accident due to concerns about his back.
The claimant blamed the accident for his alleged near-complete inability to work for an extended period after the accident. However, he never described why he could not use the phone to add to or farm his database and why he could not drive. In the context of ICBC’s theory that the claimant was spending time running another business he had incorporated rather than spending time on his real estate practice, he was cross-examined closely on a frequently recurring cryptic entry in his Day-timer. He said he could not remember what that referred to. Given the number of times the entry appeared the court found that was not credible, whether or not it was related to another business project.
The court concluded that the accident caused nothing more than a mere mild whiplash and the contusions, for which the claimant was awarded $20,000. Check out my other posts on credibility of accident claimants. Posted by Mr. Renn A. Holness
