In this minor damage car accident case ICBC denied the claim but the claimant sought a large award for personal injury damages. ICBC said that the claimant responded to ICBC’s denial of her claim by alleging injuries and losses that were not real or were not caused by the collision. The ICBC accident claim form she completed was not accurate and her exaggerated complaints and bizarre behaviour resulted in a low court award (Pitcher v. Brown,2015 BCSC 1415).
The claimant attended upon the Insurance Corporation of British Columbia (“ICBC”) to initiate a claim for injuries arising from the collision. She signed an insurance claim application. In the ICBC accident claim form she completed she referred to her employer as being the sole proprietorship that she operated under. This was inconsistent with the evidence at trial.
The ICBC claims representative forwarded correspondence to the claimant advising that “ICBC will not consider any payments with respect to your claim against our insured for injuries arising from the above-noted accident (your “tort” claim).” In response, the claimant called the ICBC adjuster and left a message on his voicemail which was recorded and which included the following:
…YOU DON’T HAVE A WITNESS TO SUPPORT THE OTHER PARTIES CLAIM. IF YOU DO SO HE WILL BE QUESTIONED WITH WITNESS IN THE COURT OF LAW. YOU GIVE ME NO OTHER OPTION BUT TO SUE YOU. BECAUSE WHEN I READ MY INSURANCE PAPERS, IT NO “HELL” ANYWHERE DOES IT SAY IF IT’S A LOW VELOCITY ACCIDENT, THEREFORE WE REFUSE TO PAY YOU ANYTHING INCLUDING YOUR PHYSIO THAT YOU HAD TO GO THROUGH AT THE ACCIDENT, INCLUDING MY DAUGHTER. SO YOU HAVE A NICE CHRISTMAS AND REMEMBER THIS, I WILL GO ALL THE WAY. YOU JUST MADE ME ANGRY AND I’M WANTING TO GET EVEN
The classic approach to credibility in BC can be summarized as follows:
… In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.(Faryna v. Chorny, [1952] 2 D.L.R. 354, [1952] 4 W.W.R. 171 (B.C.C.A.) at 357.)
In the present case, a relevant factor to consider in assessing credibility is the party’s interests. However, as Rowles J.A. said in R. v. R.W.B., [1993] B.C.J. No. 758 (C.A.) at para. 28:
[28] …. Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of a witness, but it is not the only factor to be considered. …[I]t is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented. …
The claimant in this case distinguished between credibility and reliability by characterizing credibility as an intention to deceive and reliability as the accuracy of the claimant’s evidence. That distinction is important but the judge preferred to view reliability as but one consideration in the overall assessment of credibility.The judge assessed the claimants credibility as follows:
[54] The plaintiff displayed a significant level of animosity during her testimony. While the trial process is an adversarial one, the impression left by the plaintiff was that that adversarial environment prompted her to be selective in the information that she shared. The information she did provide was often coloured in a way that, in her mind, would support a favourable result. If the questions might have revealed unfavourable information her responses became vague or she professed a lack of memory. When examined or cross-examined in areas that allowed her to elaborate and, in her mind, bolster her claim, she was able to remember great detail…
[55] She had a tendency in her evidence to state broad propositions and resist the provision of any detail…
[58] The general impression left was that the inconsistencies exist because the information is simply not truthful. It is exaggerated and enhanced but not consistently so. That presentation was consistent in my view with a person not being candid and forthright. Rather, it is consistent with the plaintiff wanting to present a glorified or more grandiose picture of her accomplishments and circumstances than can be supported in fact…
[60] Obviously plaintiffs in personal injury claims have motivation to obtain the best results they can. There is nothing wrong with that. Where, however, a plaintiff has a desire to draw a listener to inaccurate conclusions or to openly exaggerate or even falsify information, that is an entirely different situation.
[61] The plaintiff’s comments in her voice message to [the ICBC adjuster] suggest an intention to use the litigation process inappropriately. There are occasions where people may say things in the heat of the moment, but then conduct themselves in a manner that demonstrates the comments were nothing more than short lived emotional outbursts. Unfortunately I am unable to place the plaintiff into the latter category.
The claimant was awarded $40,000 for her pain and suffering and her $200,000 claim for loss of earnings was dismissed. Helpful in proving what little claim she did have was her ICBC claim application notation under “injury resulting from accident” which read “back pain between shoulder blades, neck strain”. Those complaints were reported almost immediately to her family physician. They were recorded in her own report on the ICBC accident claim form and were observed over an extended period of time by those treating her including her family physicians.
This appears however to have been a disappointing result for three weeks in the Kelowna Courthouse and there may be costs ramifications if ICBC had made any pre-trial offers.
Read more about what documents you must sign to start and ICBC injury claim.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.