ICBC Blasted for Playing “Game of Chicken” With Injured Nurse
Reasons for judgement were published this week blasting ICBC for playing a “game of chicken” with an injury claimant in essence taking the claim to trial despite having no meaningful evidence or challenges to the plaintiff’s evidence.
In the recent case (Moon v. Yaranon) the Plaintiff was involved in a 2015 crash. The Defendant admitted fault The Plaintiff was a nurse and suffered chronic soft tissue injuries leading to partial disability. ICBC had no evidence contradicting this. Despite the lack of evidence ICBC took the case to trial where damages of over $822,000 were assessed for the long term injuries. In admonishing ICBC and their ‘penny wise pound foolish’ strategy Mr. Justice Crerar issued the following reasons:
 The defendant admits liability, and accepts that the plaintiff has suffered some injuries as a result of the accident. Causation is not disputed. The defendant does not advance a failure to mitigate argument, but asserts that the plaintiff’s conditions are readily manageable, even with the physical demands of a nursing career, and may resolve themselves in the future.
 The defendant advanced no expert evidence. The defendant called only one witness: Mr Lai, a physiotherapist who treated the plaintiff in December 2015 and January 2016, just after the accident. His evidence lasted all of 10 minutes; he remembered almost nothing from his brief treatment of the plaintiff, nearly five years previous. Nor did the defendant advance hidden video or evidence from neighbours or associates indicating exaggerated disability, as is typical in personal injury cases. Such evidence is especially important where the credibility of the plaintiff or her experts is not significantly challenged on cross-examination, as in the present case. Its absence makes the task of the court exceedingly difficult in a case such as the present, where the injuries are not discernible by medical imaging or other objective means. Evidence of the existence and extent of the injury is presented through the subjective assertions of the plaintiff, both directly, and via expert testimony largely based, in turn, on those same subjective assertions.
 These observations are not directed at all toward Mr Ross, who was only brought in as counsel a few months before trial, after most deadlines had passed for such evidence, and who was acting on his client’s instructions. Unfortunately, this strategy of contesting a plaintiff’s claim, and forcing a plaintiff to proceed to trial, in an effective game of chicken, is not confined to this case: this judge alone has presided over at least one other recent trial with minimal evidence, minimal cross-examination, and minimal argument, presented by the provincial automobile insurer qua defendant.