More on ICBC Soft Tissue Injury Claims and Plaintiff Credibility


As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.
In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.
This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.

Chandra v. Chen, credibility, Low Velocity Impacts, lvi claims, Mr. Justice McEwan, soft tissue injuries

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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