21 Sep ICBC Assertions Directly Contrary to Expert Medical Evidence at Trial

The trial in the case of  Tougas v. Mostat, 2020 BCSC 1281, dealt with claims for personal injuries arising from three motor vehicle accidents. The 51 year old Plaintiff claimed that she was entitled to non-pecuniary damages for pain and suffering and loss of enjoyment of life.

The Plaintiff continued to suffer ongoing physical, emotional and cognitive injuries which impacted most aspects of her life.  Her prognosis for recovery was poor, despite following all medical prescriptions and recommendations for treatment.

It wasn’t until after the trial evidence was concluded that ICBC agreed the Plaintiff suffered soft tissue injuries, pain in her neck, upper back, shoulders and arms, paresthesia in her arms, headaches, aggravation of pre-existing insomnia, depression, anxiety and post-traumatic stress disorder.

The combined effect of the Plaintiff’s physical and psychological injuries was severe. She was either unable or had a significantly reduced capacity to enjoy most of the activities she enjoyed pre-accident. She spent much of her time resting in a darkened room to alleviate debilitating pain from regular migraine headaches. Her social life was limited, and her family and marital relationships had been significantly impaired.

ICBC argued that the accidents, at most, triggered already latent and symptomatic injuries. This assertion was directly contrary to the expert medical opinion that the first two accidents resulted directly in the injuries. It was also contrary to a second expert medical opinion that while the first accident caused injuries, the second accident contributed to the exacerbation of those injuries.

The judge found the Plaintiff’s medical evidence to be consistent with the facts of the case and mutually consistent. He noted that ICBC did not call any expert medical evidence and did little to challenge the Plaintiff’s expert evidence.

Having taken into account the submissions of counsel, case law authorities and the evidence heard at trial, the judge concluded the appropriate award of non-pecuniary damages was $195,000.