Pre-Accident Injuries/ Health Issues

You do not have to prove that the motor vehicle accident was the sole cause of your problems but rather, a “material” contributing factor.

One of ICBC’s biggest arguments is to point to a pre-accident health issue and suggest that most, or all, of your current problems are attributable to that pre-accident health issue and not to the motor vehicle accident.  However, the law is generally against ICBC on this defense because the Plaintiff need only prove that the motor vehicle accident caused or contributed to the current problems.  You do not have to prove that the motor vehicle accident was the sole cause of your problems but rather, a “material” contributing factor. The exception is the new “minor injury” legislation.

In other words, ICBC cannot usually argue that because the accident was one of many causes to your injuries, you are not entitled to full compensation for those injuries.  The motor vehicle accident need only be one of many materials causes to the injuries.

As a result, the Courts generally put little weight on the pre-accident problems that ICBC can find in the clinical records unless the pre-accident problems are ongoing in the months leading up to the accident or are the type of condition that would have developed further problems in any event, without the accident.

In fact, in some cases, pre-accident health concerns can improve your case. That is, pre-accident health concerns can make a person more susceptible to injury resulting in more severe injuries than the average person would receive in the same accident. For example, it is common knowledge that a person with degenerative changes in their spine/joint is susceptible to lasting injuries from a motor vehicle accident in that region of the body, more so than a generally healthy individual.

The legal doctrine for this susceptibility is called the “Thin Skull” rule. Basically, the at-fault motorist takes the victim as he/she finds that person.  It is no defense to argue that the at-fault motorist should not pay as much because of a person’s susceptibility to injury.

The pre-accident problems become an advantage for ICBC if ICBC can argue a “Crumbling Skull” scenario.  This is where the Court finds that the person would have developed certain problems irrespective of whether the motor vehicle accident occurred.  For example, where a person has advanced degenerative disc disease there would some expectation that some pain complaints in the region of the body would develop eventually. Again, if there is no history of problems near the accident then it’s less likely that a Court would make this finding.

The other time when the pre-accident problems become an advantage for ICBC is if the pre-accident problems are ongoing at the time of the accident and some of the current problems can be attributed to those pre-accident ongoing difficulties.

Where you may create trouble is if you do not fully disclose the pre-accident problems, whether in an initial statement provided to ICBC, at your doctor/therapist’s office, or when you are giving sworn testimony in a lawsuit. You can be assured that ICBC will get your pre-accident clinical records from every doctor/therapist you have seen for 2-5 years before the motor vehicle accident, especially if your case becomes more than just a minor claim and heads to the litigation stage.  Hence, the last thing you want to do is try to hide a pre-accident problem and think that you can get away with it because ICBC is almost certain to find out.

If you are caught in a lie about your pre-accident problems, even though the pre-accident health issue probably would not have made much of a difference in the lawsuit, the lie does taint your credibility and hence, affect your overall claim. Therefore, it is recommended that you err on the side of full disclosure. However, you can downplay the lasting nature and severity of the pre-accident health concern so long as you are not trying to mislead anyone.

In summary, in most situations, pre-accident health issues are not a significant issue in the lawsuit except if they are ongoing at the time of the accident or are progressive in nature.  Full disclosure of the pre-accident problem should be made to avoid any credibility issues being raised by ICBC. Any failure to fully disclose pre-accident health issues can taint your whole case.

 

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