Construction worker given $430,000 award for soft-tissue injuries sustained in car accident.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0577.htm

The injured party was a construction worker and father of 4 children. His work primarily focused on residential renovations and building and servicing green houses at big box stores. The plaintiff was fifty years old at the time of trial and had been injured in what the courts described as a “violent” rear end type motor vehicle accident. Although the plaintiff continued to work after the accident, he was limited in what roles he could perform and how long he could work for, largely due to ongoing neck and chronic neck pain after the accident.

In this case the lawyers for the defence tried to make the argument that since the plaintiff had been to acupuncture treatments for neck and shoulder issues prior to the accident, he must have been suffering from soft-tissue injuries before the accident that were not caused by the accident. Fortunately, the judge found the plaintiff to be credible and dismissed the defence’s argument, stating:

“Receiving an acupuncture treatment (or a massage) for the relief of soreness or temporary muscle pain arising from long hours of driving or physically demanding activities is qualitatively different from attending an acupuncturist as a result of an injury on the recommendation of one’s general practitioner.”

This was a very astute observation by the judge and was based on medical expert evidence from an expert in occupational medicine who stated “people go for massages all the time when they are working at physical jobs or go to their gardens and they do a bunch of digging”, but it “does not mean they have an ongoing back pain disability”.

Weight loss and personal injury claims: A failure to lose weight is not necessarily a failure to mitigate.

As discussed in previous articles, failing to pursue proper medical treatment can not only affect your health but may have a severely negative effect on your personal injury claim. Lawyers hired by ICBC commonly argue that an injured party has failed to take necessary steps to mitigate their losses and, as a result, their award should be significantly reduced. Indeed, injured parties do have a duty to mitigate their losses, which typically means taking reasonable steps to reduce their losses. The courts have recently elucidated the test for a failure to mitigate, which has 3 components:

  1.       that the injured party has failed to take the recommended treatment;
  2.       that by following the recommended treatment they could have overcome the problems and avoided the loss; and
  3.       that the refusal to take that treatment was unreasonable.

In this recent Supreme Court of British Columbia case, the lawyer for the defendant argued that the plaintiff had failed to mitigate their losses by failing to lose weight, as recommended by medical experts:

http://www.courts.gov.bc.ca/jdb-txt/sc/15/22/2015BCSC2219.htm

The judge ruled that the failure to lose weight alone did not amount to a failure to mitigate and the plaintiff had indeed taken appropriate steps to mitigate their losses. Despite not successfully losing weight, the judge found that the plaintiff had been a “very compliant patient who was willing to try any form of suggested treatment” and the plaintiff had indeed taken appropriate steps to mitigate their losses by pursuing other forms of treatment. The judge also ruled that the defence had not established a definite link between weight loss and improvement in function or reduction in pain. Although some medical experts found that it was “possible” that weight loss could reduce the plaintiff’s pain, they did not say it was”probable“. As a result, the defence lawyer’s argument failed.

Also, of importance here is that it was confirmed that the defence has the burden of proving that an injured party has failed to mitigate their losses. In other words, if ICBC wants to rely on an injured party failing to mitigate their losses, it is up to ICBC to prove it. Despite this, an injured party should never neglect their own treatment. I always recommend that every client of mine discusses an effective treatment plan with their doctor. Typically this will consist of treatment with registered and experienced treatment providers, such as: physiotherapists, registered massage therapists, chiropractors, acupuncturists, and kinesiologists.

weightloss

What happens if I am injured in multiple motor vehicle accidents?

http://www.courts.gov.bc.ca/jdb-txt/SC/14/16/2014BCSC1678.htm

The Supreme Court of British Columbia Vancouver Registry recently dealt with this issue. Here, the plaintiff, a nurse and mother of two, was injured in three separate car accidents. The parties in this case were unable to reach a settlement, and this matter proceeded to trial. All three accidents were lumped into one action.

Once multiple accidents have been combined into one action, things get a little complicated. The law in British Columbia has come up with the concept of “divisible” and “indivisible” injuries. A divisible injury is much easier to deal with. Divisible injuries occur when two separate injuries occur that cannot be attributed to both accidents. For example, in one accident you break your leg and in another you break your arm. An indivisible injury occurs where you have an injury that has been attributed to by multiple accidents. For example, in one accident, you injure your neck and in the next you re-injure your neck. In the case of an indivisible injury it is impossible to say which accident caused the neck injury in its entirety, just that both contributed.

From the perspective of an injured party, the next question becomes who actually pays, and the answer to this question is equally complicated. If there is contributory negligence (where the plaintiff is partially responsible for their injury) things change. Assuming there is no contributory negligence, the defendants are “jointly and severally” liable.

From the injured party’s perspective, joint and several liability basically means that you can collect an entire award from any and all of the defendants, and the parties must sort out between themselves who pays. This can be especially beneficial when you suing a party with no money and/or insurance. Even if ICBC does not cover one party, they, as a result of being found jointly and severally liable, may have to pay for damages in their entirety.

This issue of joint and several liability will require further discussion in its own post, and, as always, I suggest you discuss these issues with a lawyer with experience in personal injury law. As you can see, getting injured in multiple car accidents is not only frustrating but complicates the legal process.

car accident injury

What are the advantages of contacting a lawyer early?

If you have been injured in a car accident, there are multiple ways that contacting a lawyer early can be helpful.

Firstly, a lawyer can help you prepare a statement that will not hurt your case when you are trying to settle it later. ICBC will generally not provide you any funds or treatment until you have provided them with a statement of what happened in the car accident. This statement, although not made under oath, can be used against you later on in settlement proceedings or at trial. Any statement you make to ICBC can harm your chances of getting fair compensation later.

Next, once you have hired a lawyer, they will be entirely responsible for communicating with ICBC on your behalf. This can be advantageous for several reasons. Firstly, dealing with insurance companies, in general, is not always fun. Secondly, ICBC adjusters may encourage you to settle your claim without proper legal advice. It can be difficult to judge what a proper settlement should be, particularly in the early stages of an injury. Additionally, you may not be aware of various legal issues, which can affect your case. An experienced personal injury lawyer will be able to help you with this process.

There are also issues of convenience. ICBC has various claim centres across Vancouver, the lower mainland, and other parts of British Columbia. You may not get to choose which claim centre your claim ends up in. As previously mentioned, once you have hired a lawyer, they will be entirely in charge of communicating with ICBC on your behalf. This will save you the hassle of having to communicate with adjusters in far off and/or inconveniently located claim centres.

Even if you ultimately choose not to seek legal representation, a free consultation with a personal injury lawyer never hurts, and I recommend that it be done as early as possible.

ADVOKA~1

Soft-Tissue Injuries and Motor Vehicle Accidents

Many injuries people suffer in motor vehicle accidents are not easily diagnosed or explained. Unlike injuries like a broken bone that can be easily identified, injuries involving the soft-tissues of the body are much harder to diagnose. The lack of objective evidence these injuries leave behind increases the importance of the credibility of the injured party in both negotiations with ICBC and, in the event of a trial, before a judge.

In situations where the injuries are entirely of a soft tissue nature, the judge will often rely entirely on the credibility of the injured party to determine the amount of an award. ICBC, similarly, will place a large emphasis on the credibility of the injured party when discussing potential settlement.

Soft-tissue injuries – which can be just as disabling and painful as broken bones – if not properly presented, can lead to various legal issues, including unfair compensation for an injured party. This emphasizes why it is important for people injured in motor vehicle accidents to seek proper legal advice from a lawyer with experience in dealing with ICBC and personal injury cases.

The following article, from the BC Fibromyalgia society, provides some very basic information on fibromyalgia, a disease which commonly affects the victims of motor vehicle accidents. Fibromyalgia can be a disabling disease, which leads to a variety of physical and emotional symptoms.

http://www.mefm.bc.ca/bcfm/pages/whatisfm.html