This personal injury claimant was found to have exaggerated the extent of her car accident related symptoms and failed to distinguish between her accident-related injuries and the effect on her life by her prior chronic neck and back pain (Ahmadi v. West, 2014 BCSC 2050).
The ICBC injury claimant was injured in a motor vehicle accident at the intersection of Austin Avenue and Blue Mountain Street in Coquitlam, BC in which her vehicle was rear-ended . She claimed compensation for pain and suffering, loss of housekeeping capacity, cost of future care and special damages. She did not claim for past or future wage loss or loss of earning capacity. At the time of the car accident the claimant principally cared for the house, yard and children, with her husband working outside of the home.
The Court however accepted that her ability to maintain the house and yard was affected to some extent after the accident. Her ability to run her daycare operation was also affected immediately after the accident, although there was no loss of income as a result.
The Judge agreed that she did suffer soft tissue injuries to her neck, shoulders, arms and back arising from the accident and that her injuries had some effect on her activities. However the claimant made a substantial improvement in the first year and the soft tissue injuries were largely resolved within about three years.
There are no ICBC assessment guidelines in BC to determine how much ICBC should pay for pain and suffering. In awarding the Claimant $35,000 for pain and suffering and loss of enjoyment of life the judge considered the case authorities and his conclusions on the severity and duration of the Claimant’s symptoms arising from injuries from the accident and not from other issues. The Judge concluded that $35,000, which includes the sum of $5,000 for loss of housekeeping capacity, was a fair amount.
Importantly the Judge characterized the accident as simply a “tap” by the other vehicle against the Claimant’s back bumper. The minor nature of this accident was a factor considered by the Judge although he quotes Gordon v. Palmer in which Thackray J. said at para. 4:
I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has [no] application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
ICBC has stopped their blanket Low Velocity Impact Policy but still argues, as in this case, that the minor damage to the vehicles is a factor for the Court to consider in deciding to accept whether the Claimant was injury in the accident.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
ISSUE: Should the minor damage to the vehicles be a factor in deciding whether a claimant was injured?