Personal injury lawyers in Vancouver and the rest of BC need to consider taking a new approach to making allegations of injury. Overstating injuries in a personal injury lawsuit, as found in this case (Rasmussen v. Blower,2014 BCSC 1697) can lead to a poor outcome.
The claimant in this personal injury case was a passenger in a stopped minivan which was rear-ended causing significant damage to both vehicles. Fault was admitted and the claimant suffered soft tissue injuries which resulted in neck and back pain, knee pain, left leg numbness and headaches. However in his lawsuit filed at the Vancouver Courthouse the injuries were listed like this:
…suffered temporary full disability and permanent partial disability, pain and suffering, and loss of enjoyment of life, particulars of which include: (a)injury to the neck;(b)injury to the shoulders;(c)injury to the back;(d)injury to the left elbow;(e)injury to the left leg;(f)injury to the left knee;(g)soreness to the chest;(h)headaches;(i) numbness;(j)loss of sleep;(k)multiple abrasions, bruises and strains;(l) loss and restriction of movement;(m)continuing pain;(n)loss of concentration;(o)loss of coordination;(p)nausea;and (q)insomnia.
The claimants’s pleadings were found by the Judge to have overstated the claimant’s injuries. The Court was satisfied that if the claimant’s injuries were as serious as those pleaded, he would not have been able to discharge his full-time duties successfully, working at times 80 hours per week.
Furthermore, the claimant failed to tell his doctor about his overuse of alcohol and the claimant failed to follow recommended treatment that would have made him better. As the judge points out,
[34] If a patient does not disclose relevant facts (such as the overuse of alcohol) to his or her physician, any recommended treatment will be less likely to succeed, and when the treating physician is asked to provide expert evidence, his or her opinion, through no fault of his or her own, is less likely to be reliable…
[35] In considering the []claimant’s reliability, the Court notes that approximately three weeks after the accident, around the New Year, he took his 40-foot sailboat (co-owned with his mother) to his yacht club’s outstation at the top of Indian Arm. One would probably not take such a cruise if one lacked physical agility.
[36] In sum, the Court finds that the claimant[] suffered from whiplash-type injuries, but not to the extent he claims.
The claimant was awarded $40,000 for pain and suffering which the Judge reduced by 20% or $8,000 as a result of the his failure to mitigate.
Important to note that in British Columbia, Judges rely on the Notice of Civil Claim and Response to Civil Claim, which are the pleadings, to determine the issues involved in a personal injury lawsuit. Rule 3-1 of the Supreme Court Civil Rules, amongst other things, requires that a personal injury claim set out:
(a) A concise statement of the material facts giving rise to the personal injury claim;
(b) The relief sought by the Claimant against each named defendant; and
(c) A concise summary of the legal basis for the relief sought.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.– Serving all of British Columbia
ISSUE: Should a victim of personal injury be required to list all of their injuries in the lawsuit?