Subscribe to the ICBC Law Blog 
Subscribe via Email 
Visit my Linked In profile 
Follow me on Twitter 
Visit my JDSupra profile 
Visit my Facebook Business page 
Free Video Consultations via SKYPE
Media Requests
Client Satisfaction Survey
Is the “Low Velocity Impact” Defence Unethical?
The Law Society of BC’s Winter Benchers’ Bulletin is now out and available here.  As always there are many good tips and reminders to help keep out of ethical hot water.
Among the various tips is a reminder to litigators that encouraging reasonable settlement is a must. Â Specifically the Law Society published the following reminder:
Chapter 8, Rule 1(a) of the Handbook prohibits lawyers from instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the client’s part and are brought solely for the purpose of injuring another party. Rule 4.01(2)(a) is the counterpart to Rule 1(a) in the new BC Code. In addition, BC Code Rule 2.02(4) requires lawyers to encourage clients to compromise or settle a dispute on a reasonable basis.
Encouraging Compromise or Settlement
2.02(4) A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
This led me to think about the Low Velocity Impact defence used in response to personal injury lawsuits. Â I’ve discussed this many times. Â In short the LVI Defence is an argument that a Plaintiff suffered no injury due to the minor nature of vehicle damage following collision.
This defence has been rejected numerous times in British Columbia with Courts stating that it has “no scientific justification“, a defence that does not follow “logic or legal principle” and is a “myth“. Â Given these findings is it fair to conclude the LVI Defence leads to a “useless legal proceeding“? Â Is it unethical for counsel to run a trial based solely on the LVI defence? Â As always, feedback and comments are welcome.
This site is created by MacIsaac & Company, a British Columbia Personal Injury Lawfirm. This website is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC).This web site is made possible through funding provided by the British Columbia law firm MacIsaac and Company. bc-injury-law.com is designed to empower individuals to better understand their ICBC Claim and the process involved in dealing with ICBC. This web site is offered for information only and is not claim-specific legal advice. Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. Links to and from this website do not state or imply a relationship between MacIsaac and Company and the linked entity.
December 22nd, 2011 at 5:14 pm
Given the cherry-picking of what (& how) facts receive judicial notice, a court (any court) saying there is no scientific evidence supporting the LVI defence might not be the same as a rigorous epidemiological review of the literature. Most people, myself included, are poor judges of what makes a scientifically sound study vs a flawed one. And, logically consistent (i.e. no fallacy) does not necessarily mean a proposition is true. Experts seemingly ‘for hire’ do not help in filtering junk scientific conclusions from law and policy; indeed some law & policy is built entirely from junk science and false causal chains.
There may be good grounds for viewing with skepticism a LVI defence, but wouldn’t the facts of the case determine whether or not a proceeding was frivolous? If so, would that not then be one of the judge’s roles/duties/obligations, to set out in their decision why s/he felt the facts didn’t support the claim? Or is that overtaxing scarce judicial resources (in which case, why isn’t the Law Society working to have the legislature address this ‘mischief’)?
December 22nd, 2011 at 5:38 pm
Bruce, thanks for your comments. I agree with your observation that judicial assessments of whether there is scientific evidence to support a proposition is a far cry from a peer reviewed scientific study. I also agree that any given case needs to be viewed on its specific facts to determine if the claims/defences are frivolous.
That said, given the consistent judicial criticism of the LVI defence I question whether it should be laid to rest once and for all or if others believe there is still some merit in advancing such an argument given the BC Law Society’s views on settlement and “useless” legal proceedings (ie - defences)
- Erik
December 23rd, 2011 at 6:46 am
There is a difference between the standard of proof in the scientific community and that in the Courts. The Courts look at common sense and use the standard in these type of cases as “reasonable possibility”. There means that what the Defence puts forward must be “more likely that not”. The LVI policy put forward by ICBC and their Defence counsel does not ever meet that test and the Courts have continually said that.
Erik has said that there is a good case that it is unethical for Defence lawyers to put this defence forward when it has never succeeded. Doing it over and over knowing the result will be the same meets the definition of a certain word.
What is worse are that ICBC adjusters represent to their insureds, prior to a lawyer being hired, tell car crash victims that the the Defence is well established “ICBC Policy” (which is true), and that if you go to court, it will be argued “which is also true”. They do not say it has never been accepted the Courts. When the adjuster clearly knows the person is injured and the only reasonable explanation is the crash, should this Crown Corporation be allowed to allow their adjusters to put this policy forward? I believe the majority of people believe what the adjuster says because they work for a public body. This is where the real abuse is.
December 23rd, 2011 at 8:54 am
Terry, thanks as always for your comment.
Not being a defence lawyer I’ve never considered this before but I query whether defence counsel have an ethical duty to decline to run the LVI defence. No different than Plaintiff’s counsel refusing to advance a client’s claim for damages that has no basis in law.
Thanks for weighing in on the issue.
- Erik