Overstating Severity of Collision Leads to Claim Dismissal Following Low Velocity Impact

Update February 18, 2016 – the below case was overturned on appeal with a new trial being ordered with the Court of Appeal expressing concern that the trial judge failed “to offer any explanation of his reasons for rejecting important corrobative evidence“.
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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a personal injury claim following a minor collision.
In today’s case (Andraws v. Anslow) the Plaintiff was involved in modest rear end collision in 2011 which the Defendant took full responsibility for.  The Plaintiff went to hospital via ambulance following the incident and participated in some therapies thereafter.  The Plaintiff sought damages of over $65,000 but the claim was rejected in its entirety with the Court noting that the Plaintiff failed to meet her burden in proving the modest collision caused her injuries.  In reaching this decision the court was troubled with the plaintiff’s “overstatement” of the severity of the collision.  In dismissing the claim and ordering the Plaintiff to pay the Defendant’s costs Mr. Justice Funt provided the following reasons:

[8]             The collision occurred at very low speed.  The defendant’s car was behind the plaintiff’s van in a line leaving Guildford Mall.  The line was merging into available breaks in traffic so that egress onto 152nd Avenue could be made safely.

[9]             The plaintiff did not see the collision develop.  She only felt the impact of the defendant’s car.  She described the collision as a “hard hit” and that her chest hit the steering wheel.  The plaintiff testified her car was pushed forward but could not say how far forward.  The coffee in a cup-holder spilled.  The plaintiff’s friend, who was in the front passenger seat of the van at the time of the accident, did not testify…

13]         The defendant is an older gentleman.  He was an RAF pilot in World War II.  Age has treated him well.  He enjoys a clarity of expression and a quick mind.

[14]         As the defendant described the collision, he was behind the plaintiff as her van edged towards 152nd Avenue.  He did not see the van stop and his vehicle rolled into it.  The defendant estimated the speed of his car as “dribbling along” at approximately 2-3 kph, a “drifting speed”.  He acknowledged there was a “sudden bang” when the plaintiff’s van was bumped, not “hit”.  He felt little impact.  A Kleenex box resting on the rear seat of the defendant’s car remained in place, and did not fall to the floor upon impact.

[15]         The defendant suffered no injuries as a result of the accident. He initially thought there was no need to exchange information with the plaintiff because he could see no damage other than possible scuff marks on the van’s bumper…

[38]         The burden remains on the plaintiff to prove to the Court the nature and extent of his or her injuries and that these injuries were caused by the defendant’s negligence, whether the collision is minor or major.

[39]         The defendant’s description of the collision was consistent with the cosmetic damage to each vehicle and the overall traffic configuration at the time of the collision.  The Court finds that the collision involved only minor forces.  The plaintiff has overstated the severity of the collision.

[40]         A collision of minimal forces makes it more probable that there would not be serious injury.  As noted above, Dr. Parikh’s opinion was that the plaintiff was totally disabled from any type of employment requiring the continued use her upper and lower back muscles for almost a year.  In his deposition, he testified that the plaintiff would be “capable of some sort of sedentary-type job within six months of her injury, after she’d completed as session — extended session of physiotherapy”.  As noted above, based on questionnaires completed by the plaintiff, as of January of this year, Mr. Teh, the kinesiologist, described the then-current disability in the plaintiff’s upper body and neck as “severe”.

[41]         The Court finds that the plaintiff has not been sufficiently reliable to prove her claim on a balance of probabilities.  As described above, the Court finds that the plaintiff overstated the severity of the collision.  Without foundational reliability, the Court is not satisfied on a balance of probabilities that her complaints reflect any injury arising from the collision.  As the Supreme Court of Canada in F.H. also stated (at para. 46): “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.

[42]         Without sufficient reliable evidence, the Court finds that no injuries were occasioned by the accident.  The plaintiff has not discharged her burden of proof.

Andraws v. Anslow, bc injury law, Mr. Justice Funt

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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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