If you are in a motor vehicle accident and the damage
sustained to your vehicle is minimal or the crash involves a transfer of forces of less than 8 km/h, ICBC may classify your accident as a Low Velocity
Impact (“LVI”) collision. By categorizing your
car accident as a LVI, you may be denied compensation for your pain and suffering, expenses for your treatment, and your wage loss, both past and prospective.
In researching past court decisions for a recent LVI trial, I noticed that, over
the last several years, decisions coming out of the Supreme Court of British Columbia have been overwhelmingly critical of the ICBC's LVI policy. For
example, in Lubick v. Mei, 2008 BCSC 555, a minimal damage rear-end
collision resulted in an injury to the plaintiff:
[3] According
to Jiang, a line of traffic was stopped waiting for the left-turn signal. When the light changed, the line started to
move. Jiang testified that the Lubick
vehicle stopped when the light changed to yellow and he was not able to stop
before hitting it. He said the vehicles
“barely touched” and that the impact was “very light, just a little boom”.
[4] The
evidence of the ICBC estimator confirms that the impact was relatively minimal. The Lubick vehicle sustained cosmetic damage
to the rear bumper.
Mr.
Justice Macaulay went on to dismiss the logic behind ICBC’s LVI policy:
[5] The
Courts have long debunked as myth the suggestion that low impact can be
directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No.
474 (S.C.), Thackray J., as he then was, made the following comments that are
still apposite today:
I do not subscribe to the view that if there is
no motor vehicle damage then there is no injury. This is a philosophy that the Insurance
Corporation of British Columbia may follow, but it has no application in
court. It is not a legal principle of
which I am aware and I have never heard it endorsed as a medical principle.
He went on to point out that the presence and
extent of injuries are determined in the evidence, not with “extraneous
philosophies that some would impose on the judicial process”. In particular, he noted that there was no
evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate
the defence contention that Lubick could not have sustained any injury here
because the vehicle impact was slight.
A
similar result was reached by Madam Justice Bruce in Dolha v. Heft,
2011 BCSC 737, where the Court found “there is no scientific justification for
including that a low velocity collision is incapable of causing injuries”:
[16] Based
on the evidence led in this summary trial application, I find there is no
reason to doubt the veracity of the plaintiff’s claims that she suffered pain
in her neck and upper back, as well as headaches and dizziness, immediately
following the accident and for a period of six to nine months thereafter. Moreover, there is no evidence to contradict
Dr. Samaroo’s opinion that these symptoms arise from soft tissues injuries
caused by the accident. There is no
scientific justification for concluding that a low velocity collision is
incapable of causing injuries. The minor nature of the collision is only one
factor to consider when assessing the severity of the injuries suffered by the
plaintiff. While the medical evidence
before the court is primarily based on the subjective complaints of the
plaintiff, there is no evidence that the plaintiff’s symptoms continued beyond
what would normally be expected for these types of soft tissue injuries. Thus the caution expressed in Butler [v. Blaylock, [1981] B.C.J. No. 31 (S.C.)] and Price [v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.)] is not relevant on
the facts of this case.
Madam Justice Adair in Lee v. Hawari, 2009 BCSC 1904, found that the LVI defence does not
follow logic or legal principle:
[53] Mr. Hawari appears to suggest that because this was a low
velocity collision, Ms. Lee could not have suffered any injury, or could only
have suffered minor injuries. However, this does not follow, either as a
matter of logic or legal principle, as Mr. Justice Thackray reminded
litigants (and their insurers) in Gordon v. Palmer (1993), 78
B.C.L.R. (2d) 236 (S.C.), at para. 4 to 6. See also Jackman v. All Season Labour
Supplies Ltd., 2006 BCSC 2053, at paras 12 to 13, and Ceraldi v. Dathie, 2008 BCSC 1812,
at para. 27. The presence and extent of injuries are to be determined on
the basis of evidence given in court.
In Cariglino v. Okuda, 2011 BCSC 1429, the
Plaintiff was involved in a rear-end motor vehicle accident. The vehicle that she was a passenger in sustained
$724 in damage and the
defendant advanced a LVI defence and argued that the small amount of damage “indicates the relatively minor nature of the
collision and the likelihood that the complaints of injury and loss made by the
plaintiff are either not related to this collision or are embellished.” Mr. Justice McKinnon rejected
this "bald proposition":
[35] The
defendant contends that the very minor nature of the collision would render
“improbable” the nature and extent of the injuries the plaintiff contends she
suffers. I was not provided with opinion evidence to support that contention
and thus am unable to accept the bald proposition that minor damage equals
minor injury.
In Gignac v. Rozylo,
2010 BCSC 595, the Plaintiff was involved in a minor collision resulting in cosmetic damage to his bumper ICBC advanced the LVI defence, stating that “given
the very minor nature of the collision it is difficult to conceive how someone
could possibly be injured, or injured in the significant fashion the plaintiff
claims. The plaintiff ... has suffered an extreme and unforeseeable physical
or mental reaction to a minor event.”
Mr.
Justice Wilson rejected the LVI defence in the following comments:
[28] As I
understand the third party's position on this issue of liability, in the context
of reliance on Mustapha [v.
Culligan of Canada
Ltd., 2008 SCC 27] ,
the question in this case, with the necessary changes, as posed at para. 18 of
Mustapha is:
In order to show that the damage suffered by the
plaintiff is not too remote to be viewed as legally caused by the defendant's
negligence, the plaintiff must show that it was foreseeable that a person of
ordinary fortitude would suffer serious injury from an incident involving
contact of two motor vehicles which resulted in the scratching of paint on a
plastic cover.
[29] The
third party contends that the plaintiff has failed to meet that onus.
[30] I am
not persuaded that the third party’s argument is open to me to accept.
There are two propositions which lead me to that opinion.
[31] First,
in Gordon v. Palmer ,
Thackray J. (as he then was) made the following observations:
I do not subscribe to the view that if there is no
motor vehicle damage then there is no injury. … It is not a legal
principle of which I am aware and I have never heard it endorsed as a medical
principle.
Significant injuries can be caused by the most casual
of slips and falls. … The presence and extent of injuries are to be
determined on the basis of evidence given in court.
[32] Second,
in Price v. Kostryba, McEachern,
C.J.S.C. (as he then was), said at para 4:
Perhaps no injury has been the subject of so much
judicial consideration as the whiplash. Human experience tells us that
these injuries normally resolve themselves within six months to a year or
so. Yet every physician knows some patients whose complaint continues for
years, and some apparently never recover.
[33] Therefore,
I conclude that Gordon is
authority for the proposition that the magnitude of forces unleashed, in any
given contact, is not determinative of the injuries sustained.
Accordingly, in this case, there was a “real risk” of the harm now complained
of.
[34] And, Price is authority for the proposition that, objectively,
some patients, of “ordinary fortitude” sustain injuries which are permanent.
In this case, I am not dealing with the particular vulnerabilities of this
particular plaintiff.
[35] In
result, I find the defendant liable for the plaintiff’s injuries. That is
to say, the defendant’s carelessness caused, as I will describe below, the
plaintiff’s injuries, in fact and in law.
In summary, BC courts have recently called the LVI defence “myth”
(Lubick, supra; Thomas v. Wormsley, 2009 BCSC 919; Jezdic v. Danielisz, 2008 BCSC 1863), following neither logic nor legal principle (Hawari, supra),
and “void of scientific justification” (Dolha, supra).
I recently appeared
on behalf of a plaintiff at trial where the LVI defence was put forward. The judge rejected the LVI
defence and our client was awarded $23,653.74 plus his legal costs in bringing his claim to trial. Madam Justice Wedge made the following comments while ruling in favour of our client:
[24] The defendant argued that the plaintiff
had not established causation between the accident and his alleged injuries.
The gist of the defendant’s position on causation was that it did not follow
that the plaintiff, a strapping young man in reasonable physical shape, could
suffer the alleged soft tissue injuries from such a low velocity impact.
[25] The difficulty with this argument is
that there is simply no evidence to support it. The defendant did not have the
plaintiff examined by a physician or call any evidence to suggest that low
velocity impacts could not cause the kind of soft tissue injuries that the
plaintiff claimed to suffer as a result of the accident.
[26] Moreover, the defendant did not put
that theory to Dr. Lim when she testified. It was not suggested in
cross-examination of Dr. Lim that Mr. Johnson was malingering or
exaggerating his injuries.
[27] The defendant attempted to attack the
plaintiff’s credibility by pointing to what I can only describe as minuscule
discrepancies in his evidence.
[28] The plaintiff was a credible and even a
quite remarkably low-key witness. He did not attempt to exaggerate his
symptoms. His evidence was straightforward and matter of fact. He readily
acknowledged he was sufficiently recovered after three weeks to return to light
duties and in slightly less than three months was fit to take on the more
strenuous labouring tasks of a longshoreman.
[29] Dr. Lim, too, gave forthright and
factual evidence. She did not attempt to advocate on her patient’s behalf.
[30] In summary, I am satisfied the accident
of March 12, 2009,
caused the soft tissue injuries described by the plaintiff and his physician
Dr. Lim.
