If you sustain a whiplash or acceleration-deceleration injury in a motor vehicle accident and commence a court action or court case to recover compensation for your injuries, there is a good chance that you may hear about the case of Price v. Kostryba. What you need to know about Price v. Kostryba is that it has a history that doesn't always make its way into the hands of the judge, as seen by comparing two cases reported this month.
This case is nearly 30 years old now, but seems to be a favorite case of ICBC defence counsel to present to the Court in cases dealing with "subjective" injuries. This is so because it seems to suggest that a court has to use a higher level of scrutiny in a case involving "subjective" injuries. What is important however, is that there is only one standard of proof in all civil cases, and that is "a balance of probabilities." In more simple language, balance of probabilities means "is it more likely than not" or "anything more than 50%."
What is a "subjective" injury? It is an injury that is diagnosed by your doctor based on your reporting of your symptoms, without "objective" signs of injury. An "objective" injury, is something that you can see. A fractured bone, that can be seen in X-ray films, is an objective injury. A cut or laceration, that can be photographed, is an objective injury. Whiplash is commonly referred to as a "subjective" injury, since it is difficult if not impossible given the state of medical diagnostic imaging today to visualize the damage. As those injured in car accidents will tell you, that doesn't make the pain any less real.
The quotation that defence counsel most often bring to the attention of a trial judge is the reasoning of the Honourable Chief Justice McEachern in Price v. Kostryba, which is:
"Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themseleves within six months to a year or so. Yet every physician knows some patients whom complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation...
In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel's arguyment that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:
"I am not stating any new priniciple when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.
An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But one cannot expect his fellow citizen or citizens to compensate him in the absence of convincing evidence, -- which could be just his own evidence if the surrounding circumstances are consistent--that his complaints of pain are true reflections of a continuing injury.""
As you can see, the Honourable Chief Justice McEachern first decided the case of Butler v. Blaylock at the trial level on October 7, 1981, and then, citing his own reasoning, decided the case at the trial level of Price v. Kostryba on February 16, 1982. What isn't apparent from Price v. Kostryba, is that the trial decision in Butler v. Blaylock was appealed to the British Columbia Court of Appeal in the meantime, and the appellate reasons were delivered on February 4, 1983. The 3-member panel of the B.C. Court of Appeal held:
"It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff's emotional or psychological makeup and does not result from objective symptoms.""
Labels: ICBC, injuries, objective, subjective, whiplash
