Although every personal injury claim is unique the defenses to them to them are generally all the same. There are several main defenses which ICBC or the defendant in a personal injury lawsuit will raise in an effort to avoid paying damages.
Defense #1 – Denying liability for the accident
This means that the defendant will allege that they are not responsible for the accident or any of the damages that flow from it.
Defense #2 – Contributory Negligence
The defendant will allege that the injured party has somehow contributed to their own injuries. This might be as a result of failing to take adequate care to look after themselves, failure to wear a seatbelt or properly adjust a headrest. It may be alleged that if the injured party was also driving a vehicle that they were the cause of the accident either in whole or in part. If someone is contributory negligent then the overall value of the claim would be reduced by the percentage amount that an individual is found to be contributory negligent.
Defense #3 – No Injury
The pleadings filed by a defendant will always allege that even if an accident occurred the plaintiff was not injured as a result of the accident. It is usually just a blanket denial and simply means that the plaintiff is required to meet the onus of proof of establishing that injuries or damage were sustained as a result of the accident.
Defense #4 – Prior Injury
If a person was injured or suffered damages as a result of the accident the defendant’s will allege that those injuries were not as a result of the accident but were pre-existing, either in whole or in part and that the accident was either not responsible at all or was simply responsible for aggravating injuries or medical condition which were already present.
Defense #5 – Failure to Mitigate
It is usually alleged that the plaintiff has failed to mitigate. Mitigation is an obligation on an injured party to take reasonable steps to try to lessen the damages they have sustained. Mitigation would include such things as attending recommended physiotherapy or engaging in a structured rehabilitation program. It may include such things as a recommendation by physicians that someone stop smoking or lose weight. With respect to loss of earnings a plaintiff has to take reasonable steps to try and return to work or if that is not possible to take steps to find alternative employment or to retrain so that they can re-enter the workforce in some productive capacity.
The requirement to mitigate is not an absolute standard but it is an obligation for a plaintiff to act in a reasonable manner in trying to recover from injury and reduce losses which may be sustained.
There are other minor which can be raised but these are the general ones which will be raised in every case.