In this ICBC brain injury lawsuit (Jampolsky v. Shattler,2011 BCSC 494) the claimant was involved in four car accidents all of which the Insurance Corporation of British Columbia, ICBC, was the insurer of the other drivers. The claimant was a 28 year old Surrey resident at trial and at the time of the first accident the claimant was only 18 years old.
The injury claimant asserted that he sustained a mild traumatic brain injury (MTBI) which left him with significant personality changes, memory deficit, and sensory deficit. The injury claimant said that the brain injury impairs his future employment prospects.
ICBCs’ position was that the claimant did sustained soft tissue injuries in each of the four accidents, and that he recovered uneventfully from each without any residual effects or impact upon his future employability. ICBC was of the view that the claimant should only get $10,000.00 for his pain and suffering and not much else.
the claimant, on the other hand, sought an award for pain and suffering in the range of $125,000 to $245,000, together with a claim for loss of future employment capacity in excess of $1,000,000. The sum of $77,000 was claimed for loss of interdependent relationship and $12,000 for future care. The later amount was comprised of the costs of physiotherapy treatments, cognitive training, and the increased cost of adaptive footwear.
The judge concluded that the claimant suffered only soft tissue whiplash types injuries in the accidents and only awarded $15,000 for pain and suffering. As the judge found,
“On the totality of the evidence, including the evidence of the plaintiff and his brother relating to the force of the impacts in the first and third accidents, the statements of the plaintiff made to ICBC concerning the second and third accidents, the video depicting the damage to the plaintiff’s vehicle in the first accident, and the absence of any complaints which might reasonably have given rise to a suggestion of brain trauma in the second and third accidents, I am unable to conclude that there was any head trauma in the second or third accidents which resulted in an MTBI.”
The judge also found that the contact with the motorcycle in the second accident was modest and the claimant acknowledged in his statement to the ICBC adjuster that, except for aggravation of his neck pain, there was no worsening of his symptoms. There was no credible event in either the second or third accidents such that such that an MTBI could have resulted. If a MTBI occurred, it is as a result of the first accident.
The court concluded that the soft tissue injuries sustained in the first accident had not resolved by the time of the second accident, and that the effects of the first and second accidents combined had not resolved by the time of the third accident. “As such, I assess the damages for the soft tissue injuries from the three accidents which occurred in 1999 globally at $14,000. The defendants, ICBC in the first and second accidents, and Janjua and Parmar in the third accident, are jointly and severally liable (Bradley v. Groves, 2010 BCCA 361).”
As to the fourth accident, there was a complete lack of evidence as to the injuries, if any, suffered by the claimant in that collision and the court concluded the claimant suffered, at worst, an extremely mild soft tissue injury and assessed his damages for the fourth accident at $1,000.00.
The court relied on the fact the the claimant gave ICBC two statements none of which mentioned any symptoms consistent with brain injury. At the trial of this matter the claimant confirmed that the statements given to ICBC about his car accident injuries were true.
I have commented about the importance of an accurate ICBC statement before and this case is another example of why injury claimants should seek legal advice before giving a statement to ICBC. It is also important to consider making a call to ICBC Dial-a-Claim to ensure some of your immediate symptoms are recorded. Posted by Mr. Renn A. Holness
3 Comments