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Surrey Personal Injury Lawyers Explain ICBC Awards

Our BC personal injury lawyers operate out of 4 offices across British Columbia, including Surrey, Vancouver, Kelowna, and Fort St. John. Our department is headed by a senior ICBC claim and personal injury lawyer who is based at our Surrey office.  
Please call us toll free at 1.877.602.9900 or call us directly at 604-576-5400 or send us an email to set up a FREE initial consultation.

Our Surrey personal injury lawyers are often asked by our clients to explain how ICBC and the Courts determine the amount given as an award.  We try to warn our clients that their credibility is a key factor in determining what pain and suffering or compensation they will receive for their personal injuries. This is especially true during settlement negotiations or a trial. We recommend that you never talk to an ICBC representative or agent without first seeing an experienced personal injury lawyer.

A recent 2013 decision of the BC Supreme Court presents a helpful summary for our clients of what a Judge and jury need to focus on to determine the proper damage award for an injured party:

FACTORS TO BE CONSIDERED IN ASSESSING THE PLAINTIFF’S CREDIBILITY

[56]         The defendants raise the plaintiff’s credibility as an issue.  In Buttar v. Brennan, 2012 BCSC 531 at paras. 24 and 25, I stated:

[24]      In a case such as this where there are little, if any, objective findings except some minor degenerative changes in the neck, back and knee, the following should be taken into account by the trier of fact:

•  the assessment of damages in a moderate or moderately severe soft tissue injury is always difficult because the plaintiffs are usually genuine, decent people who honestly try to be as objective and factual as they can.  Unfortunately every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages Price v. Kostryba (1982), 70 B.C.L.R. 397 at 397 (S.C.);

•  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 (Price at 399);

•  an injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer.  But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury (Price at 399);

•  the doctor’s function is to take the patient’s complaints at face value and offer an opinion based on them.  It is for the court to assess credibility.  If there is a medical or other reason for the doctor to suspect the plaintiff’s complaints are not genuine, are inconsistent with the clinical picture or are inconsistent with the known course of such an injury, the court must be told of that.  But it is not the doctor’s job to conduct an investigation beyond the confines of the examining room Edmondson v. Payer, 2011 BCSC 118 at para. 77, aff’d 2012 BCCA 114;

•  in the absence of objective signs of injury, the court’s reliance on the medical profession must proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1127 at para. 73;

•  in a case of this kind care must be taken in reaching conclusions about injury alleged to have continued long past the expected resolution.  The task of the court is to assess the assertion in light of the surrounding circumstances including the medical evidence.  The question is whether that evidence supported the plaintiff’s assertion and, if not, whether a sound explanation for discounting it was given Tai v. De Busscher, 2007 BCCA 371 at para. 41.

[25]      In light of the above, an assessment of the plaintiff’s credibility is critical:

The test must reasonably subject his story to an examination of its consistency with the probabilities which surround the currently existing conditions.  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 at 357.



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