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This Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.
Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.
Archive for the ‘ICBC LVI (Low Velocity Impact) Cases’ Category
November 8th, 2013
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury of two year’s duration.
In this week’s case (Visona v. Stewart) the Plaintiff was injured in a 2009 collision. ¬†The Defendant admitted fault. ¬†The Court accepted that the collision, despite being relatively minor, caused soft tissue injuries which lasted for up to two years. ¬†The Plaintiff’s most serious concern was chronic tailbone pain although the Court rejected the submission that this was caused by the collision. ¬†In assessing non-pecuniary damages at $30,000 for the soft tissue injuries Mr. Justice Jenkins provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Based on the statements above and Ms. Visona‚Äôs evidence at trial, her suffering and the effects of the soft tissue injuries likely lasted no longer than two years from the date of the accident. In making this determination, I am not taking into account the ‚Äútailbone‚ÄĚ injury which Ms. Visona claims was caused by the November 23, 2009 accident. The evidence supports a finding that Ms. Visona continued suffering from her tailbone injury long after the soft-tissue injuries appear to have healed. I am considering the tailbone injury separately because on the evidence of the nature and severity of the accident, all of the medical practitioners‚Äô evidence and Ms. Visona‚Äôs evidence, I find it unlikely that her tailbone injury was caused by the accident.,,
¬†¬†¬†¬†¬†¬†¬†¬†¬†As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona‚Äôs marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual‚Äôs situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven‚Äôs decision in¬†Carter v. Zhan,2012 BCSC 595, and Madam Justice Maisonville‚Äôs decision in¬†Vela v. MacKenzie,¬†2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages¬†of $35,000 and $27,000, respectively.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.
May 1st, 2013
If an injured plaintiff¬†inaccurately¬†describes¬†the forces of a collision to physicians that can work to undermine the foundation of subsequent medico-legal reports and strike at the foundation of a personal injury claim. ¬†Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In this week’s case (Warren v. Morgan) the Plaintiff was involved in two collisions in 2008. ¬†She sued for damages and proceeded to trial which took 22 days. ¬†The Court found that the first¬†collision¬†caused “no damage” to the Plaintiff and dismissed the claim. ¬†The second claim allegedly caused profound injury including long term problems stemming from both psychiatric and¬†organic¬†injuries. ¬†The Court largely rejected the Plaintiff’s claim and dismissed most of the claimed damages. ¬†In doing so Madam Justice Russell provided the following comments criticizing the Plaintiff’s evidence with respect the forces involved in the collision:
¬†¬†¬†¬†¬†These findings do not determine the issue of causation. The law is well-established that causation and the extent of an injury will be decided on the whole of the evidence:¬†Hoy v. Harvey, 2012 BCSC 1076 at paras.¬†44 – 45;¬†Christoffersen v. Howarth,¬†2013 BCSC 144 at paras.¬†56 – 57. Even if the accident was minor, Ms.¬†Warren may have suffered serious physical and psychological injury.
¬†¬†¬†¬†¬†At the same time, Ms.¬†Warren has put forward an untruthful version of the accident to her treating health care professionals, as evident in their description of the incident. For instance, Dr.¬†Boyle‚Äôs report notes that she crashed into the car ahead of her as a result of Mr.¬†Berretta‚Äôs vehicle hitting her from behind. This misstatement cannot be explained by the passage of time; it is a misrepresentation that affects the reliability of the medical evidence admitted in this case for the purpose of determining causation and damages…
¬†¬†¬†¬†¬†On the evidence, I find the plaintiff has convinced herself that the accident occurred in a certain way and that she experienced certain symptoms. She has presented this story to her treating doctors who have relied upon the accuracy of her reported symptoms. These doctors have found support for their diagnoses in other medical reports, that similarly rely upon the accuracy of plaintiff‚Äôs reported symptoms. This evidence superficially seems reliable, but its foundation is fictitious.
April 24th, 2013
I have it on good authority that ICBC’s Low Velocity¬†Impact¬†Program is being largely scrapped. ¬†Instead of the conventional LVI denials for collisions with under $2,000 of vehicle damage, I am informed that ICBC will now only deny claims under the LVI policy in cases where vehicle damage is limited to “scuffs, scrapes or¬†scratches“. ¬†Anything beyond this minimal paint damage will be adjusted on overall merits. ¬†I have not yet seen a written copy of this shift in policy but if I do I will be sure to share it here.
With this introduction out of the way, the latest judicial nail in the LVI coffin was released this week. ¬†In this week’s case (Midgley v. Nguyen) the Plaintiff was involved in a 2004 collision. ¬†He suffered various injuries and sued for damages. ICBC argued this was a Low Velocity Impact and that the plaintiff was not injured. ¬†Madam Justice Dardi soundly rejected this argument finding the Plaintiff suffered from a torn labru in his right hip along with psychological injuries. ¬†She assessed non-pecuniary damages at $110,000. ¬†In dismissing the LVI Defence the Court provided the following critical comments:
¬†¬†¬†¬†¬†The overarching submission of the defence was that ‚Äúthis was a nothing accident‚ÄĚ. The tenor of the defence submission was that, since there was no damage to Mr.¬†Midgley‚Äôs motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.
¬†¬†¬†¬†¬†There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle‚Äôs damage. Rather, the existence and extent of a plaintiff‚Äôs injuries is to be determined on the basis of the evidentiary record at trial: see¬†Gordon v. Palmer¬†(1993), 78 B.C.L.R. (2d) 236.
¬†¬†¬†¬†¬†As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr.¬†Midgley. I accept Mr.¬†Midgley‚Äôs evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr.¬†Midgley‚Äôs body position at the time of impact – and the existence of his injuries.
¬†¬†¬†¬†¬†On the totality of the evidence, I am persuaded that Mr.¬†Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.
April 4th, 2013
While the BC Supreme Court Rules generally deprive a Plaintiff of costs who bring an action to trial that could have been brought in small claims court the BC Court of Appeal clarified that having ‘sufficient reason’ to sue in the BC Supreme Court is not limited to quantum of damages alone. ¬†Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering some such other factors.
In this week’s case (Bae v. Vasquez) the Plaintiff was injured in a 2010 rear-end collision. ¬†The Plaintiff suffered¬†relatively¬†minor soft tissue injuries. ¬†She sued in the BC Supreme Court and was awarded damages of just over $12,000. ¬†ICBC argued she should not be awarded costs as the action could have been brought in small claims court. ¬†Madam Justice Baker disagreed finding that ICBC’s initial denial of liability, LVI Defence and the Plaintiff’s language barriers were all reasons justifying bringing the action in the Supreme Court. ¬†In awarding costs the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue.¬† I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Plaintiff‚Äôs counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim.¬† Plaintiff‚Äôs counsel has advised the Court that prior to the action being commenced, the defendant‚Äôs insurer had indicated:
…that due to the ‚Äúminimal nature of the impact forces involved in the collision‚ÄĚ…the Plaintiff had not sustained any ‚Äúcompensable injury‚ÄĚ.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Plaintiff‚Äôs counsel submits that because the defendant was maintaining that the plaintiff‚Äôs negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court.¬† Counsel pointed out that at the plaintiff‚Äôs examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver‚Äôs licence at the time.
¬†¬†¬†¬†¬†¬†¬†¬†¬†It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant‚Äôs counsel wrote to plaintiff‚Äôs counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff‚Äôs consent to transfer the action to that court.¬† Plaintiff‚Äôs counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer.¬† Defendant‚Äôs counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court.¬† No reply was received.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms. Bae testified at trial with the assistance of an interpreter.¬† She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her.¬† Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel.¬† Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation.¬† There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Taking all of these factors into account, I am of the view that there was sufficient reason for the plaintiff to bring her action in Supreme Court.¬† I award the plaintiff costs, the costs to be governed by Rule 15-1(15).
February 19th, 2013
I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage. ¬†The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim. ¬†Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was¬†involved¬†in a minor rear-end¬†collision¬† ¬†Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back. ¬†The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.
The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision. ¬†In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence:
¬†¬†¬†¬†¬†I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.
¬†¬†¬†¬†¬†Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g.,¬†Koonar v. Schleicher,  B.C.J. No.¬†3054 (P.C.) at paras.¬†30-33.
¬†¬†¬†¬†¬†In¬†Miller v. Darwel, 2005 BCSC 759, the court stated:
¬†¬†¬†¬†¬†¬†¬†¬†On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of¬†Gordon v. Palmer¬†(1993), 78 B.C.L.R. (2d) 236¬†(B.C.S.C.) in which Thackray, J. (as he then was) said at para.¬†4:
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 not 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.
¬†¬†¬†¬†¬†¬†As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.
¬†¬†¬†¬†¬†¬†I agree with Taylor, J. in¬†Yeh v. Ford Credit Canada Ltd.,¬† B.C.J. No.¬†1400¬†(B.C.S.C.), when he said at para.¬†7:
Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.
¬†¬†¬†¬†¬†More recently,¬†Mr.¬†Justice Macaulay stated in¬†Lubick¬†v.¬†Mei and another, 2008 BCSC 555 at para.¬†5, that ‚Äú[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.‚ÄĚ
¬†¬†¬†¬†¬†I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms.¬†Gonzales‚Äô claims of injury, particularly as they relate to her right shoulder.
February 4th, 2013
Adding to this site’s archived posts addressing Low Velocity Impacts, reasons for¬†judgement¬†were released last week by the BC Supreme Court, New Westminster Registry, rejecting this defence.
In last week’s case (Christoffersen v. Howarth) the Plaintiff was involved in a 2010 rear end collision. ¬†Fault was admitted by the Defendant. ¬†The Plaintiff suffered a soft tissue injury which was still symptomatic at the time of trial but there was an “excellent prognosis” for full recovery. ¬†The Court assessed non-pecuniary damages at $35,000 but prior to doing so Mr. Justice Weatherill provided the following comments criticizing the LVI Defence:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision.¬† Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In order to accept the defendant‚Äôs argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision.¬† I am not prepared to do so.¬† I found each to be credible, honest and forthright.¬† Their evidence was uncontroverted by the defendant. ¬†At most, the plaintiff‚Äôs evidence was shown on cross examination to have been exaggerated in a few minor respects.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan.¬† No evidence was led by the defendant regarding the amount of force that the plaintiff‚Äôs body was subjected to during the collision or how the shock absorbers built into the vehicles‚Äô bumpers affected the damage that otherwise would have been sustained.¬† In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I accept that the collision was relatively minor.¬† However, even a low impact collision can cause injury:¬†Lubick v. Mei, 2008 BCSC 555 at paras. 5-6.¬† Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff‚Äôs vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†Causation has been established by the plaintiff.
November 29th, 2012
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which occurred as a result of a so-called ‘low velocity‘ impact.
In this week’s case (Ram v. Rai) the Plaintiff was involved in a 2008 rear-end collision. ¬†The crash resulted in little¬†vehicle¬†damage. ¬†The Defendant testified that the impact involved ¬†’very little force‘¬†although¬†the Court rejected this finding that the Defendant’s¬†version¬†of events was “¬†internally inconsistent and generally unconvincing.“. ¬†The court went on to find that the Plaintiff¬†suffered¬†a year long soft tissue injury. ¬†In assessing non-pecuniary damages at $16,000 Mr. Justice Holmes provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†As I find, at the time of the accident Ms.¬†Ram was an active and healthy young woman of 21 years of age, who was busily engaged not only in full-time post-secondary studies but also in two part-time jobs.¬† She had an active social life with friends that involved playing several different sports as opportunities presented.¬† She enjoyed gym workouts and doing workout exercise tapes at home.
¬†¬†¬†¬†¬†¬†¬†¬†¬†As I find, the accident left Ms.¬†Ram with throbbing pain in her back, neck, and head that became intermittent over time, with occasional numbness in her legs.¬† The pain in the various areas gradually resolved within a year, the back pain last of all.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The effects of the injuries caused Ms.¬†Ram to miss work and some school during the few days or a week after the accident.¬† They made her withdraw from social activities over a longer term, so that she seemed to her family to be withdrawn and reclusive, no longer her bubbly self.¬† These effects resolved as her injuries resolved, within about a year…
¬†¬†¬†¬†¬†¬†¬†¬†¬†On all the evidence, I conclude that the appropriate award for non-pecuniary damages in this case is $16,000.¬†
November 16th, 2012
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with damages for minor soft tissue injuries following a so-called ‘low velocity impact‘ collision.
In the recent case (Wallner v. Uppal) the Plaintiff was involved in a 2008 rear-end collision. Fault was admitted. ¬†The collision was relatively minor causing just under $450 worth of vehicle damage. ¬†Despite¬†this the Plaintiff suffered a soft tissue injury to her neck and shoulder. ¬†Her symptoms were “mild” but were expected to linger into the future. ¬†In assessing non-pecuniary damages at $20,000 Madam Justice Stromberg-Stein provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff’s claim is for damages for a permanent partial disability relating to her intermittent ongoing neck, upper back and shoulder pain and left arm pain, and numbness and tingling she says is caused by the accident. ¬†The plaintiff acknowledges her condition is relatively mild but maintains it is persistent and likely permanent.¬† She claims she experiences pain and discomfort while commuting to work, at work, doing household work, and during recreational activity.¬† She complains of intermittent weakness and lack of sensitivity in her left hand.¬† She claims she is unable to predict when she will be symptomatic.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In this case, in addition to minimal cosmetic damage to the vehicles, the plaintiff’s subjective complaints were not objectively verifiable, and in any event her injuries were minor and of minimal impact on her life.¬† The plaintiff has not missed any work and has no claim for past wage loss or for loss of future earning capacity despite maintaining a permanent partial disability. ¬†The evidence establishes the plaintiff suffered soft tissue injuries of a minor nature, with continued minor, intermittent numbness and tingling in her left arm and fingers, which injuries have had and will have minimal impact on her life.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the result, based on an assessment of the evidence and considering the authorities relied on by counsel, the plaintiff is awarded general damages in the amount of $20,000. ¬†In addition, she is awarded special damages in the amount of $283, with court order interest.¬† With the agreement of counsel, costs are set pursuant to¬†Supreme Court Civil Rules,¬†R.15-1(15)(c) at $11,000 and disbursements.
October 9th, 2012
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries caused by a Low Velocity Impact.
In last week’s case (Naidu v. Gill) the Plaintiff was involved in a 2008 rear-end collision. ¬†The crash resulted in little vehicle damage. ¬†The Plaintiff alleged he had injuries caused by the crash which were on-going at the time of trial. ¬†The court found that the plaintiff was an “unreliable historian” and did not accept that the Plaintiff’s ongoing complaints were related to the crash. ¬†The Court did, however, accept that the crash caused a modest soft tissue injury which resolved 4 months following the collision. ¬†In doing so Mr. Justice Kelleher provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Mr.¬†Naidu suffered soft tissue injuries in the 2008 motor vehicle accident. ¬†The injuries were not severe. ¬†It is significant that no prescription medication was suggested or prescribed; Mr.¬†Naidu has been able to work throughout the period since then. ¬†No report of an injury was made to ICBC for over a year. ¬†Mr.¬†Naidu was able to travel to Asia on three occasions in 2010. ¬†Mr.¬†Naidu made three visits to a physician in early 2009 and made no mention of pain symptoms from the accident. ¬†Finally, while the extent of the damage to the vehicle is not determinative for the reasons I just explained, it is not irrelevant that the damage to the vehicle was minor. ¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†The evidence does not establish causation for the symptoms persisting past approximately January 2009.¬† It is at least equally likely that the symptoms which resulted in his complaints in April¬†2009 and September¬†2009 were caused by physically demanding work as a security guard…
¬†¬†¬†¬†¬†¬†¬†¬†¬†I conclude that the symptoms from the September¬†2008 accident persisted into early 2009. ¬†The plaintiff has not discharged the onus of proving that his symptoms since that time were caused by the accident. ¬†I have reviewed a number of authorities including¬†Bagasbas v. Atwal,¬†2009 BCSC 512;¬†Gradek v. Daimler Chrysler Financial Services Canada Inc., 2009¬†BCSC 1572;¬†Ostovic v. Foggin,¬†2009 BCSC 58; and¬†Ceraldi v. Duthie,¬†2008 BCSC 1812.
¬†¬†¬†¬†¬†¬†¬†¬†¬†An award of $4,000 is appropriate.
August 7th, 2012
As discussed many times, the ‘low velocity impact‘ defence is not particularly compelling and is often judicially frowned upon. ¬†Certainly there is no legal principle which states that minimal impact forces result in no compensable injuries. ¬†This was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Sourisseau v. Peters) the Plaintiff was involved in a 2007 collision. ¬†Fault was admitted by the Defendant. ¬†The Defendant advanced the LVI Defence highlighting that the impact caused under $1,000 in repair costs to both vehicles and further that the¬†impact¬†was likely at speeds below 8 kmph. ¬†With this¬†evidence¬†in hand the Defendant argued that the plaintiff “sustained no compensable injury“.
Mr. Justice Greyell rejected this line of reasoning and found the Plaintiff was indeed¬†injured¬†in the low velocity impact and awarded $22,5000 for her non-pecuniary damages. ¬†In doing so the Court provided the following reasons:
 While the significance of the damage sustained in a collision may be a factor with which the Insurance Corporation is concerned it is not a matter which necessarily has a direct relationship to the plaintiff‚Äôs injuries. The issue for determination is whether the plaintiff‚Äôs injuries were caused or contributed to by the accident,¬†Gordon v. Palmer¬†(1993), 78 B.C.L.R. (2d) 236 (BCSC); Boag v. Berna, 2003 BCSC 779.
 In this latter connection, the defendant called Mr. Goudie an engineer who testified the change of velocity at the time of the collision was probably less than 8 km/h.
 In my opinion, in the circumstances of this case, the change of velocity alone is of little significance. At the time¬†of impact¬†Ms. Sourisseau had her head turned sideways. The evidence clearly establishes she had had pre-existing difficulties with neck and back pain. It likely took very little by way of an impact to trigger a recurrence of that pain. The defendant called no medical evidence to suggest otherwise…
60] Accordingly, I find the plaintiff suffered pain and suffering from soft tissue injuries for approximately 14 months with the odd flare-up continuing thereafter until early 2010 when she testified she felt she had returned to her pre-accident status.
 After reviewing the authorities submitted by counsel I award the plaintiff $22,500 for non-pecuniary damages.