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Surrey ICBC personal injury lawyer – Discuss Winning Your Case

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Winning Your Surrey ICBC Personal Injury Case

The experienced Surrey personal injury and ICBC car accident lawyers at MacLean Personal Injury know, causation is a critical issue in Surrey ICBC and personal injury cases. Unless the Plaintiff can prove the accident was wholly or partially caused by the Defendant, a claim will be dismissed.

In the recent case of Warren v. Morgan the court held:

The law is well-established that causation and the extent of an injury will be decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC 1076 at paras. 44 – 45; Christoffersen v. Howarth, 2013 BCSC 144 at paras. 56 – 57. Even if the accident was minor, Ms. Warren may have suffered serious physical and psychological injury.

Here is a great explanation from the Hoy decision on what you must prove to receive an award of damages to compensate you for your pain and suffering and other losses after a car crash:

[40]         The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to an injury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17.

[41]         The primary test for causation asks: but-for the defendant’s negligence, would the plaintiff have suffered the injury? The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[42]         The most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in if not for the defendant’s negligence, no better or worse. The tortfeasor must take his or her victim as they find them, even if the plaintiff’s injuries are more severe than they would be for a normal person (the thin skull rule).

[43]         Mr. Hoy contends that he has met this test based on his evidence, the evidence of Ms. Gutierrez and the independent medical evidence of Dr. Yong and Ms. Mattiello.

[44]         The defence submits that Mr. Hoy could not have sustained his claimed injuries from such a minor impact. The defendants rely on the comments made by the Court in Sinclair v. Norman, 1996 CarswellBC 1761 (Prov. Ct.) where the Court dismissed the claim where there had only been a “light touch” or “nudge”:

[16]      Common sense will tell me that surely there has to be a threshold of impact for any soft tissue injury. Given the evidence in this case of a light touch of the independent witness or imperceptible nudge of the Defendant. I cannot on balance conclude that the Claimant has the causation established necessary to find in her favour.

[45]         Evidence of the damage caused and the impact generally can be one of many factors considered by the Court in the determination of what injuries, if any, were caused by the accident. In Miller v. Darwel, 2005 BCSC 759, the Court stated:

[9]        On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray J. (as he then was) 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 not 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.

[10]      As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.

[11]      I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.

[46]         As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47]         I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

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.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

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