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Surrey ICBC Accident Injury Lawyer

Our Surrey ICBC accident injury lawyers handle trials and appeals for our Surrey and Vancouver clients who have suffered an Surrey ICBC Accident injury. A recent BC Court of Appeal case reversed a trial judgement rejecting a Plaintiff’s claim on her lack of credibility without giving proper reasons to enable appellate review. If you have suffered a Surrey ICBC accident injury call our team of seasoned and no nonsense Surrey personal injury lawyers to get us on your side so you can focus on your recovery.

A Judge Must Give Reasons Capable of Appellate Review In Surrey ICBC Accident Injury Cases

In the recent 2016 case of Andraws v. Anslow, the BC Court of Appeal held that the judge made a mistake in their reasons because the trial judge offered no explanation of why he found the plaintiff to be totally unreliable in the face of some independent and corroborative evidence of injury. Here is an extract of their reasons that explain what a Judge must do in their judgment in a Surrey ICBC accident injury case:

[4] The respondent submits that both grounds of appeal rest on an attack on the adequacy of the reasons. He argues, relying on this Court’s decision in Shannon v. Shannon, 2011 BCCA 397, that the reasons, when read in conjunction with the record, allow for meaningful appellate review of the live issues at trial.

[5] As I see the matter, this appeal turns on whether the reasons for judgment are inadequate, rather than whether there has been a misapprehension of evidence.

[6] It is sufficient to note that Ms. Andraws alleged the collision caused her soft tissue injuries, headaches, and difficulty sleeping. She testified that as a result of her injuries it was too painful for her to continue to work as a hairdresser. She also testified about the impact of her injuries on her day to day life. In support of her case she called her husband, her treating doctor, and a kinesiologist.

[7] The reasons for judgment contain a description of the collision, a narrative of Ms. Andraws’ evidence about the collision and her injuries, an outline of the medical legal opinion of her treating physician and her kinesiologist, an outline of the law relating to the burden of proof, particularly as it applies in respect of soft tissue injuries and the care that must be taken when the evidence is primarily based on subjective reporting by a plaintiff. The trial judge also noted cases recognizing that injuries may occur where there has been no damage to the vehicle in a collision of minimal force, but also accepting that the forces involved in a collision may be relevant to whether it has caused any injury.

[8] The law governing adequacy of reasons is well settled. As Mr. Justice Tysoe, in dissent but not on this point, said in Bedwell v. McGill, 2008 BCCA 6:

[21] The question of whether a trial judge’s reasons are adequate is a threshold issue. If the reasons are not adequate to permit proper appellate review, the appeal must be allowed and a new trial ordered. Inadequate reasons do not enable the appellate court to make its own findings of fact and conclusions of law based on those findings. In addition, the issue of adequacy of reasons is different than the issue of whether the failure of the trial judge to address critical evidence constitutes a palpable and overriding error.

[9] Adequate reasons for judgment fulfil certain functions. As the Supreme Court of Canada stated in F.H. v. McDougall, 2008 SCC 53 at para. 98, they justify and explain the result, particularly to the losing party, provide a basis for appellate review, and satisfy the public interest in demonstrating that justice has been done. Reasons may be sufficient if they are responsive to the live issues in the case and the parties’ key arguments. A judge is not obliged to discuss all of the evidence, but it is necessary for the reasons to disclose that he or she has grappled with the substance of the live issues at trial. As Madam Justice Smith noted in Shannon at para. 9, even where reasons may be objectively inadequate, appellate interference will not be justified if the reasons, read in light of the record as a whole permit meaningful appellate review.

10] This trial involved alleged soft tissue injuries. By their nature proof of soft tissue injury often depends to a considerable degree on the subjective reporting of symptoms by the plaintiff. This was so here. Ms. Andraws gave a substantial amount of evidence about her injuries and the onset of her symptoms immediately after the collision. The trial judge’s finding that she did not suffer any injury as a result of the collision necessarily involved finding that Ms. Andraws was not a reliable or a credible witness. As I have observed, the only stated basis for that conclusion was that the collision involved minimal force and that Ms. Andraws had exaggerated the severity of the collision in her evidence.

[11] Whether Ms. Andraws had been injured in the accident was a vital issue at trial. In my view, the judge was required to give reasons that would be adequate to facilitate appellate review for rejecting Ms. Andraws’ assertion that she had been injured in the accident. In my opinion, he failed to do so.

[16] The judge’s failure to offer any explanation of his reasons for rejecting important corrobative evidence makes it impossible to engage in any meaningful appellate review. Reading the reasons in light of the record as a whole only underscores the point. Whether the accident caused any injury was a central and vital live issue at trial. There was evidence bearing on this point. The corrobative evidence was subject to cross-examination and was the focus of submissions. But the reasons offer nothing to explain why, in light of the evidence and argument, the judge decided as he did. I cannot discern whether the judge accepted that Ms. Andraws was injured (at least to some extent), but those injuries were not caused by the accident or whether the judge concluded that the plaintiff was not injured at all. I cannot discern whether the trial judge rejected the husband’s evidence only in so far as it laid the basis for an inference that the injuries were attributable to the accident or whether he entirely rejected his evidence of his wife’s condition. I do not know if the judge accepted that the doctor detected muscle spasm (but attributed it to some other cause) or whether he rejected the evidence of the existence of muscle spasm. Attempting to discern the “why” of the result would require this Court to engage in pure speculation, not appellate review.

 

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In the end result a new trial was ordered. MacLean Personal Injury lawyers will tenaciously pursue the highest possible money settlement for you in your Surrey ICBC accident injury case but call us early on across BC toll free at 1-877-602-9900 to ensure the best possible health and monetary result or request a free consultation. We have offices in Surrey, Vancouver, Kelowna and Fort St. John.



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