Car Accident Whiplash Injury Claimant Wins in Minimal Damage Claim

The injury claimant was a front seat passenger in her father’s Honda Civic in this whiplash injury claim(Chamberlin v. Profeit).  She was on Ospica Drive, in the City of Prince George, when her vehicle collided with another vehicle and that driver admitted being at fault.
The judge found that the other driver caused the car accident when she drove across Ospica Drive in front of the claimant’s vehicle and the photos introduced into evidence indicate that the damage caused to both vehicles as a result of the collision was minimal. ICBC often refers to these cases as  low velocity impact collisions, which they deny due to the minimal damage to the vehicle.
The injury claimant , who was 14 years old at the time of the accident, suffered a whiplash injury, seat belt bruises, lacerations and a bump on her head. The judge however was not satisfied that the claimant’s chronic pain was caused as result of the car accident.
Despite the whiplash  injuries suffered by  claimant she continued to be active after the car accident.  She continued with her dancing; she continued with her tobogganing; she continued with her snowboarding; she continued with her volleyball; and she continued with her rock and wall climbing. In fact,  two weeks after the car accident the claimant was involved in an incident where, while tobogganing, her toboggan ran into the side of a truck.
There was no doubt in the judge’s mind that the claimant suffered a whiplash injury as a result of the accident.  The court accepted  the claimant’s evidence that the morning after the accident she was in excruciating pain and, as a result, attended the Bulkley Valley District Hospital.
Judge S.R. Romilly cited what seems to have become the common default case  of Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19,  where Kirkpatrick J.A. wrote:

“The inexhaustive list of common factors cited in Boyd [v. Harris (2004), 237 D.L.R. (4th) 193, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)     age of the plaintiff;

(b)     nature of the injury;

(c)     severity and duration of pain;

(d)     disability;

(e)     emotional suffering; and

(f)      loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)     impairment of family, marital and social relationships;

(h)     impairment of physical and mental abilities;

(i)      loss of lifestyle; and

(j)      the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54, 136 A.C.W.S. (3d) 982).”

The injury claimant was awarded  $27,500 for pain and suffering and out of pocket expenses of $449.78. The claims for cost of future care and future lost earnings were dismissed. Posted by Mr. Renn A. Holness
Issue: Should it matter how much damage is done to a vehicle in an ICBC personal injury whiplash claim?