Sunday, October 31, 2010

Judge denies ICBC's claim that injured woman's symptoms motivated by an unconsciuous desire to avoid work

A trial judge last week denied ICBC's claim that  an injured woman's symptoms were motivated by an unconscious desire to avoid work.

On October 28, 2010, a trial decision was released in Carr v. Simpson.  Ms. Carr was injured when Mr. Simpson likely fell asleep at the wheel and hit her vehicle.  She suffered a number of injuries and psychological consequences:
  1. Neck/upper back/trapezius: bilateral, with pain and tingling across the back, shoulders, and down the arms with poor chances of full recovery.
  2. Thoracic Outlet Syndrome, with surgery not recommended as a remedy.
  3. Periodic (once every two weeks) incapacitating headaches, causing nausea and vomiting which would probably continue indefinitely.
  4. Injury to right hand and wrist for which surgery was not entirely successful.
  5. Meniscus tear to the right knee with surgery two years after injury which was successful.
  6. Low back pain and right hip flexor which was likely permanent.
  7. A major depressive disorder of moderate severity.
Mr. Justice Bernard reiterated that the following factors should all be considered when determining how much someone's pain and suffering is worth:
  1. the plaintiff’s age;
  2. the nature of the injury;
  3. the severity and duration of pain;
  4. disability;
  5. emotional suffering;
  6. loss or impairment of life;
  7. impairment of family, marital, and social relationships;
  8. impairment of physical and mental abilities;
  9. loss of lifestyle; and
  10. stoicism (as a factor for which the plaintiff should not be penalized).
The judge noted that the defence conducted on behalf of ICBC asked a number of witnesses whether Ms. Carr's description and complaints of her injuries was motivated by an unconscious desire to avoid work.  The trial judge refused to support this argument however.  He stated: "While I have some trouble with the concept of an unconscious motive, I have no difficulty in concluding there is no direct, or indirect, evidence the plaintiff was motivated, unconsciously or otherwise, by secondary gain."

After considering all the injuries and the above-noted factors, the trial judge awarded Ms. Carr $100,000 for pain and suffering.

We are often faced with allegations of secondary motive when representing people with permanent physical and/or psychological issues.  This case demonstrates that judges will not readily accept that people are being consciously or subconsciously dishonest about the nature and extent of their injuries.

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