Evasive Actions: personal injury claims without actual collisions.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1217.htm

This recent Supreme Court of British Columbia case dealt with a motorcyclist who was force to take evasive action while entering an intersection. The motorcyclist had the right of way, and another vehicle entered the intersection after stopping at a stop sign to the right of the motorcyclist. The motorcyclist was able to avoid striking the other vehicle, but ultimately lost control of their motorcycle and suffered a significant injury while striking the ground. The courts found that the motorcyclist’s actions had been prudent in the circumstances and that they were still entitled to make a claim against the other driver, despite the fact that no collision had occurred between the two motor vehicles.

In coming to this conclusion, the judge applied a couple important legal principles:

  1. When avoiding a hazard ahead, a driver is not expected to make the perfect decision, only a decision that is reasonable in the circumstances. The existence of a better course of action does not result in a finding of negligence.
  2. It is up to the driver who has created the initial hazard to demonstrate that the other driver could have reasonably avoided the hazard.

In this case had the defendant been able to show that the plaintiff’s rate of speed had contributed to or caused their fall then the judge may have made a different finding on liability. However, neither side presented evidence to show that the motorcyclist had been speeding. This case once again demonstrates the importance of hiring legal counsel, and why doing so prior to speaking with ICBC can be important.

What is Whiplash?

The modern definition of whiplash, as it is used by various legal and medical bodies in British Columbia, traces its origins back to a study commissioned by the Quebec Automobile Insurance Society in 1989. The “Quebec Task Force” (“QTF”), which was the body commissioned with completing this report, provided an in depth report on whiplash, which included a “Whiplash Associated Disorder” (“WAD”) grading scale, which remains in use today.

The QTF completed their report at a time when much less was known about soft-tissue injuries and rehabilitation. As such, much of their report is no longer seen as valid, particularly the parts that relate to recovery time. The reality of long-term and even permanent soft tissue injuries arising from whiplash injuries is far more accepted now.

However, the grading scale, which is based on a score of 0-4, remains heavily in use. For example, the Insurance Corporation of British Columbia references this scale on their CL-19 forms, which are routinely provided to treating doctors when a personal injury claim is made. The British Columbia Chiropractors Association has similarly adopted this scale. The WAD scale involves placing whiplash injuries into 5 separate categories:

  1. Grade 0 WAD: No complaint about the neck and no physical sign of injury
  2. Grade 1 WAD: Neck complaint of pain, stiffness or tenderness only and no physical sign of injury
  3. Grade 2 WAD: Neck complaint and muskuloskeletal sign(s) of injury
  4. Grade 3 WAD: Neck complaint and neurological sign(s) of injury
  5. Grade 4 WAD: Neck complaint and a fracture or dislocation

Of note, is that as you go up the grading scale, the descriptions of the injuries become less subjective and more objective. As previously discussed diagnosing a subjective injury largely involves relying on complaints made by the injured party, whereas objective injuries are typically physically observable, such as broken bones. As, the vast majority of personal injury whiplash cases involve primarily subjective injuries, hiring a competent lawyer to properly frame these cases is extremely important.

Injured party awarded $80,000 for a partial disability affecting her ability to work in the family restaurant.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/11/2017BCSC1103.htm

The issue of wage losses is complicated and becomes more complicated when dealing with self-employed individuals with variable incomes. In this case, a 42 year old woman suffered right ankle and whiplash like injuries to her neck/upper back after her car was struck by another vehicle that was exiting a driveway. This plaintiff was left with ongoing and chronic pain. Additionally, the plaintiff had gone on to develop symptoms of thoracic outlet syndrome and psychological injury, including depression.

The plaintiff in this case was not given an award for past wage losses, but was given an award of $80,000 for loss of future earning capacity. Once again, the capital asset approach was used. The capital asset approach provided the plaintiff with an award despite the fact that her future wage losses were not capable of being quantified. The plaintiff, in this case, ran an Italian restaurant with her family. The courts acknowledged that despite the fact that she was unable to prove that she had suffered any past wage losses, it was probably that she would suffer from an impairment that would affect her ability to earn income going forward.

This case once again illustrates the difference between the two ways in which future losses can be assessed: the earnings approach and the capital asset approach. The earnings approach relies on actual calculations of wage loss and requires the use of mathematical formulas and relatively certain quantification of wages. The capital asset approach is a much looser approach, which relies on hypothetical and more general guess work. Once again, merely because there is uncertainty about future wages, that doesn’t mean you can’t be awarded fair compensation for them.