Have you suffered soft tissue injuries after your accident? Our Surrey ICBC injury lawyers discuss Rabiee v. Rendleman, 2015 BCSC 595, a case where the court addressed injuries which are ‘subjective’ and not objectively provable.
Many people suffer soft tissue injuries after a motor vehicle accident. These often manifest themselves as pain, discomfort and fatigue. When these symptoms are ongoing, they can also lead to other problems such as low moods and depression.
The particular nature of these injuries is such that they are not readily detectable through objective testing, eg, they’re not going to be seen on an x-ray. Only the individual who suffers can properly describe the pain that they experience. The fact that these injuries are ‘subjective’ and not objectively provable is a common ICBC tactic used against Plaintiffs in their claims for injuries. In a recent decision out of the Nanaimo Registry, Rabiee v. Rendleman, 2015 BCSC, the court addressed this by clearly articulating that injuries requiring subjective proof are no less real or serious.
The Plaintiff, Ms. Rabiee, was involved in a very minor rear-end motor vehicle accident in 2008 where she suffered soft tissue injuries. Unfortunately, the Plaintiff’s symptoms became increasingly worse over time until she began to suffer from chronic pain in and around 2010. This also included various other symptoms such as headaches, upper back pain, fatigue, difficulty sleeping and depressed mood.
The Defence attempted to minimize the Plaintiff’s claim in several ways. They called the Plaintiff’s former husband as a witness, but the Court completely rejected his evidence due to the fact that they were involved in ongoing matrimonial litigation and he was clearly biased. The defence also proffered expert evidence from an orthopaedic surgeon, Dr. Piper. Madam Justice Sharma had the following comments about his evidence:
 Overall I found Dr. Piper to be credible but I note that, as an orthopedic surgeon, his expertise is not diagnosing or treating soft tissue injuries. In particular, I found his insistence on the “objectivity” of detecting muscle spasms to reflect a rigidity that is consistent with skepticism that soft tissue injuries can be serious. This contributed to some minimization of Ms. Rabiee’s symptoms. In my mind, that impacted the reliability of his allegation that Ms. Rabiee was exaggerating her symptoms. He was the only witness (other than Ms. Rabiee’s ex-spouse whose evidence I reject) to suggest any kind of deception, exaggeration or malingering by Ms. Rabiee. I find his evidence about exaggeration to be an unreliable outlier and I do not place any weight on that aspect.
In assessing damages for pain and suffering, Madam Justice Sharma went on to confirm that no ‘stricter’ standard applies when determining non-pecuniary loss for subjective complaints arising from an accident:
 The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock,  B.C.J. No. 31 (B.C.S.C.) that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”
 I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock,  B.C.J. No. 1490 (B.C.C.A.) clarified: “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”
 The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors.
If you have been involved in a motor vehicle accident in Surrey, or anywhere in the Lower Mainland, call us. Our Surrey ICBC injury lawyers have the expertise and the experience to get the ICBC settlement you’re entitled to. Phone 604 576 5400 or request a consultation.