April 30th, 2010
Countless people have been injured in car crashes over the years in British Columbia and had their injury claims denied by ICBC on the basis of the Low Velocity Impact Program.
I have written many times about this program explaining that it has no legal force in BC. Reasons for judgement were released today proving this yet again and in doing so providing one of the better explanations of why a certain threshold of vehicle damage is not necessary in order to have a successful personal injury claim in this Province.
In today’s case (Gignac v. Rozylo) the Plaintiff was involved in a 2004 collision in Victoria, BC . At trial a ‘senior estimator‘ employed by ICBC testified that the Plaintiff’s vehicle suffered “cosmetic damage only to the rear bumper cover. ‘ and that ‘there is no bumper misalignment or sheet metal damage‘.
The Plaintiff was injured but ICBC advanced the LVI defence arguing 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‘.
Despite finding that the crash was ‘one of the more minimal contacts between motor vehicles in the history of the internal combustion engine‘ Mr. Justice Wilson outright rejected the LVI defence and in doing so provided the following very useful summary of the law:
 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.
 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.
 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.
 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.
 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.
 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.