Claimant fights back- Judge wrong about gross exaggeration
A new trial has been ordered for this personal injury claimant after the trial judge dismissed the case without any justifiable reason. This personal injury cases gives some assurance that claimant’s can stand up to judges that inject their own opinions in place of medical experts. This case is also a warning to trial judges not to ignore a claimant’s evidence solely on their court demeanor. As the Court of Appeal emphasized:
“a trial Judge’s impressions on the subject of demeanor should be carefully checked by a critical examination of the whole of the evidence”(Pacheco v. Antunovich, 2015 BCCA 100 at para 42)
The claimant was not at fault for this rear-end collision which caused very little damage to her vehicle and no damage at all to the other vehicle. The trial judge appeared to fall into error in assuming that based on the minimal damage that the claimant could not have been injured. However, the medical evidence was clear and uncontradicted that he had suffered an injury.
The Court of Appeal was puzzled with the trial judge’s finding as all of the injury claimant’s doctors testified to objective findings of lower back and right gluteal pain that, in their opinion, were caused by the car accident. In addition, scans of the lumbosacral spine revealed disc bulging at the L5-6 level.
The trial judge also fell into error when he conflated legal causation with the assessment of damages and the Court of Appeal pointed out:
“any evidence of pain from a pre-existing injury or a medical condition that may have been symptomatic at the date of the accident would be relevant to the assessment of the quantum of damages, not to the validity of the appellant’s claims.”
Finally the Court of Appeal felt compelled to reiterate some trite law:
“there is no rule of law or physics that a person cannot be injured in a low speed collision”
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.