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Vancouver, B.C.

2005  FIGHTING  THE NO CRASH , NO CASH   ICBC POLICY 

  • SOFT TISSUE INJURY CASE 
  • DELAYED ONSET OF SYMPTOMS 
  •  PRE EXISTING  CONDITION 
Our client was rear ended in a minimal damage case of under  $1000.oo damage. ICBC policy was  no car damage = no injury.  Clients were offered zero and essentially accused of fraud.  Our client reported  70% improvement, continued to work &  awarded damages for her injuries in the amount of >  $21, 000.oo  

INTRODUCTION

[1]                The plaintiff claims damages for injuries suffered in a motor vehicle accident on September 21, 2001, (the "M.V.A.").  Her injuries are all of the soft tissue variety.

[2]                The defendants argue that the plaintiff is entitled to only nominal damages, for two reasons;

            1.         The damage to both vehicles was minimal, and therefore, the defendant argues that the injuries must also have been minimal; 

            2.         The plaintiff's injuries pre-date the M.V.A., by many years, during     which she has received treatment for these injuries, regularly and frequently.

THE IMPACT

[3]                The collision occurred on Granville Street, where the vehicle which the plaintiff was driving was rear-ended by the rental vehicle.  Liability is admitted.

[4]                In his testimony, the defendant, described the force of the impact as being close to none.

[5]                The impact caused a small dent in the defendant's front bumper, although the paint from the bumper was not disturbed, even at the point of impact.  The cost of the repair was $211.19, including tax, although this was a discount price given to the owner of the vehicle, which is a car rental company, (the corporate defendant).

[6]                In her testimony, the plaintiff described the impact as a jolt.  Her rear bumper was minimally dented and the cost of its repair was $523.32 including tax.

[7]                The plaintiff testified that, despite the minimal damage to the vehicles, the impact had enough force to cause her injuries of a type and intensity that she had not suffered for many years prior to the accident.  Discomfort from the injuries began not long after the impact, and progressively got worse for at least one year.  Even then, she did not return to her pre-M.V.A. condition, and was still symptomatic at the time she gave evidence.

[8]                The defendants argue that the lack of serious damage to the vehicles indicates that the force of the impact was minimal, and it is therefore highly unlikely that the plaintiff could have suffered more than trifling injury.

4.         Plaintiff's Delayed Onset,  Pre exisiting Condition  & Credibility

[31]            The defendants argue that I should be suspect of the plaintiff's credibility, largely because the defendant says that she made certain comments to him, indicating that she was not hurt, immediately after the M.V.A., as well as during two telephone conversations he had with her during the next several weeks.

[32]            I reject this argument and find the plaintiff credible, although not always reliable in her recollections.

    Plaintiff's Argument

[25]            The plaintiff acknowledges that she suffered a variety of similar physical problems prior to the M.V.A., but argues that the injuries were quiescent for some years before the M.V.A.  The plaintiff gave evidence that she had recovered from the injuries from the 1989 M.V.A. within approximately five years.

[26]            After the M.V.A. of September 21, 2001, the plaintiff's attendance at various doctors increased dramatically compared to her attendance prior to the M.V.A.  Specifically:

1.         She commenced seeing Dr. Michael Foran, chiropractor, on October 17, 2001,

It was only after the M.V.A. of September 21, 2001, that she commenced seeing Dr. Foran again, and she saw him  twenty-three times between October 2001, and August 2003.

30]            Dr. Foran in his Medical Report of March 11, 2003, notes the following with respect to the M.V.A. of September 21, 2001:

Diagnosis as a result of a MVA September 21, 2001 is grade II cervical spine acceleration deceleration injury ... .

Since the MVA  reports headaches, neck, shoulder, mid and low back pain, stiffness with restricted motion. ...

It is more likely than not that the injury arose from the subject motor vehicle collision.

5.         The Law

[37]            In addressing the issue of a "crumbling skull" vs."thin skull", I am guided by the decision in Athey v. Leonati, [1996] 3 S.C.R. 458, as follows:

34.       ... The "crumbling skull" doctrine is an awkward label for a fairly simple idea.  It is named after the well-known "thin skull" rule, which makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition.  The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person.


SPECIAL DAMAGES


With respect to Dr. Foran, the material presented supports payment of all of the amount claimed, consequently, I allow the amount. 


[56]            Judgment is granted in favour of the plaintiff in the amount of  non-pecuniary &  special damages for a total of $21,114.28.