23 Apr ICBC Accuses ICBC Lawyer of Exaggerating Injuries

The Plaintiff in Jenkins v. Irving, 2020 BCSC 391, was an ICBC lawyer involved in a motor vehicle accident. She claimed that the accident caused constant neck and lower back pain, as well as ongoing headaches, which prevented her from working more than 25 hours a week.

This case was challenging for the court for several reasons. The Plaintiff had primarily worked as an ICBC defence lawyer, so she had detailed knowledge of motor vehicle accident injuries, medications, symptoms, treatments and evidence. She also had pre-existing chronic depression and ICBC argued that her present troubles were primarily attributable to that, rather than the accident. Finally, the Plaintiff was terminated from her job just six weeks after the accident, leading to a nervous breakdown. Again, ICBC argued that this stressor was more to blame for the existence and persistence of her present complaints than the accident itself.

The Plaintiff argued that she was a credible witness. ICBC argued that the Plaintiff was almost wholly unbelievable. They argued that her symptoms beyond the first few months were fictitious and exaggerated, and pointed to her ability to work long hours in the weeks following the accident.

The judge felt that the Plaintiff’s testimony about her current state, and her attribution of her current state to the accident, were exaggerated. He agreed with ICBC that had the accident never occurred, the stress of the termination from work may well have triggered the headaches and recurring depressive symptoms. However, he did accept that the accident caused injuries, including exacerbation of the Plaintiff’s pre-existing conditions.

With respect to earning capacity, the judge generally agreed with ICBC that the Plaintiff was not as impaired in practicing of law as she claimed. She described the period immediately after the accident as the worst point in pain. Nonetheless, she was able to work and bill significant hours from the date of the accident to her termination six weeks later. The judge also agreed with ICBC’s general observation that there were many lawyers functioning and thriving notwithstanding depression, headaches, neck and back pain, and other more debilitating conditions.

Having said that, the judge concluded that the residual effects of the accident on the Plaintiff’s pre-existing physical and psychological conditions had reduced her past earnings to some degree. He also concluded that her present earning capacity was slightly worse than what it likely would have been without the accident.

Damages were accordingly adjusted down (from the almost $4 million the Plaintiff was asking for, to just over $550,000) to reflect the modest differential between the state attributable to the accident, and the state the Plaintiff would very possibly have been in at trial, in any case.