ICBC Law

As I’ve previously posted, when Plaintiff’s sue for damages from soft tissue injuries sustained in so-called “Low Velocity Impacts” their credibility often plays a crucial role at trial.  The simple reason for this is that without objectively verified injuries a Court must make a favourable finding to accept the Plaintiff’s evidence that they experienced pain following the collision.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the relationship between soft tissue injuries and plaintiff credibility.

In today’s case (Chandra v. Chen) the Plaintiff was injured in a 2007 BC motor vehicle collision.   The claim was defended with the argument that “the Plaintiff did not suffer an injury in the accident which was so slight that the other driver involved  in the accident could not even recall an impact to the front of his vehicle“.

This defence was rejected with the Court finding that the Plaintiff did indeed sustain “some minor injuries…which have merged into a continuum with stresses that have arisen at work“.  Mr. Justice McEwan went on to award the Plaintiff $20,000 for her non-pecuniary damages.  Prior to doing so the Court made the following useful comments about the significance of Plaintiff credibility in soft tissue injury cases and the relationship of the collision to her injuries:

[21]         It is often difficult to assess injuries where the mechanism of injury is not obvious – as is often the case in low damage accidents – and there is little other than the plaintiff’s own evidence to support a claim of ongoing pain. Because “credibility” is crucial, much is often made of inconsistencies in medical records that ostensibly record the impressions of physicians of the plaintiff’s remarks under circumstances that are themselves difficult to assess. The court is often left with making what it can of the impression given by the plaintiff in the witness box.

[22]         The plaintiff did not appear to be exaggerating. She gave her evidence in a straightforward manner. I accept that she suffered some pain associated with the accident and I accept that she is sincere in her effort to recall the pain she has suffered since that time. To the extent that she has been unspecific, and at times somewhat inconsistent, I do not think she has been motivated to mislead. I think her attempt to recall all of the pain she attributes to the accident somewhat at odds with her actual experience, which appears to have been of some aches and pains that would come and go over time. I also think that the stresses of a physical occupation have at times been assigned to the accident when they have actually arisen independently.

One principle that has become clear in BC injury lawsuits is that ICBC’s LVI Policy of denying tort compensation in minimal vehicle damage accidents has no legal merit.  Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.

In today’s case (Mendoza-Flores v. Haigh) the Plaintiff was involved in 2 separate motor vehicle collisions.  She was injured in both.   ICBC accepted that the second accident caused some injuries but argued that the first crash “was incapable of causing the injuries complained of (by) the Plaintiff“.  Mr. Justice Harvey rejected this argument with the following useful comments:

[54] Regarding as the relationship between the damage to the two vehicles and the resultant claim for injuries suffered by one of the occupants, it is trite law that the fact that the damage to the plaintiff’s vehicle was minor does not lead to a conclusion that the resultant injuries are also minor: Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.).

The Court went on to award the Plaintiff damages for her injuries and loss including $40,000 for her non-pecuniary damages.   In reaching this figure Mr. Justice Harvey made the following findings:

[61]        In the result, I find that the plaintiff has experienced a moderate soft tissue injury which continues to cause both discomfort and poses problems in her employment to the present time.

[62]        The plaintiff never fully recovered from the effects of the first accident although it would seem, from the evidence, she was heading toward a complete resolution of her symptoms. Her symptoms just before the second accident were appreciably better than they are presently…

[67]        While unresolved to some extent, I do not view the evidence as proving the plaintiff’s injuries as permanent. Both from an investigative and treatment standpoint it appears there were, and are, further steps available to the plaintiff.

[68]        Reviewing her injuries and comparing them to the authorities I have been referred to, I conclude that $40,000 represents a proper global assessment of the plaintiff’s general damages arising from the two accidents.

You can click here to read my archived posts discussing other BC Court cases dealing with so-called Low Velocity Impacts.

The law has become clear that while ICBC’s LVI policy is not a legal principle and is not a valid legal defence, the amount of vehicle damage is a factor judges and juries can consider in a BC injury claim.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this.

In this week’s case (Cahoon v. Brideaux) the Plaintiff was injured in a car crash.  There was minimal vehicle damage.  The Plaintiff’s claim was largely rejected by a Jury at trial.  Prior to giving their verdict the Trial Judge told the Jury that “From that evidence you are asked to draw inferences about how hard Mrs. Brideaux struck Mrs. Cahoon, and from those inferences you are asked to draw another inference about what injuries that impact caused to Mrs. Cahoon. ”

The Plaintiff appealed arguing in part that the Judge was wrong to give the above instruction to the Jury.  The BC Court of Appeal disagreed and gave clear reasons indicating that a Court can consider the amount of vehicle damage during an injury claim.  Specifically the High Court stated as follows:

[82] The issue addressed in the passage from Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) quoted in Lubick was whether the “no crash, no cash” policy of the Insurance Corporation of British Columbia was founded on a valid legal or medical principle.  Mr. Justice Thackray noted that no evidence was called to substantiate the theory that minimal impacts could not cause injury and went on to resolve the nature and extent of the plaintiff’s injuries in that case on the lay and medical evidence before him.  Similarly, it appears the issue addressed in this passage in Lubick was the defence contention that such a minimal impact could not have injured the plaintiff.  However, these passages do not represent a statement of legal principle that in low-impact collision cases, the defendant has the burden of proving the plaintiff’s injuries were not caused by the collision.  It is well-settled law that the burden is always on plaintiffs in these cases to prove the nature and extent of their injuries and to prove they were caused by the defendant’s negligence.

[83] Here, the respondents did not argue that Mrs. Cahoon could not have been injured in the collision.  Rather, they conceded she suffered some injury but submitted that she was exaggerating her injuries and that she had not proven that all of the injuries and losses of which she complained were caused by the collision.  The burden of proof of these matters lay with Mrs. Cahoon – the respondents did not bear the burden of proving that the injuries she claimed were not caused by the collision.

[84] The evidence of automobile damage was relevant to the question whether Mrs. Cahoon suffered the injuries she claimed as a result of the collision.  In R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24 (Ont. C.A.), Doherty J.A explained relevance as follows:

… Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.”  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[85] Human experience and logic, qualities for which juries are particularly valued, are the essence of common sense.  They suggest there is a relationship between the force of an impact between two vehicles and the resulting damage to the vehicles.  Thus, evidence of minimal damage makes it more likely the force of the impact was minimal (Fact A).  Human experience and logic also suggest there is a relationship between force exerted on the human body and injury caused by the force.  Thus, evidence of minimal force applied to the human body tends to make it more probable that the resulting injury would not be serious (Fact B).  It follows that the evidence of vehicle damage was relevant on this issue and the trial judge did not err in instructing the jury that they could use it as circumstantial evidence.

[86] It follows, as well, that I would reject Mrs. Cahoon’s submission that the trial judge erred in permitting the jury to use this evidence to “override” the expert medical opinion evidence on causation.  The weight to be given low-impact evidence will depend on the particular circumstances of each case.  Here, Mrs. Cahoon led expert medical opinion evidence that the collision caused her very serious injuries.  These opinions on the causation issue were based on various facts, including Mrs. Cahoon’s descriptions of her injuries and the dynamics of the collision.  The jury was required to consider the expert opinions but was not bound to accept them.  Rather, it was for the jury to determine what weight to assign to those opinions after weighing all of the evidence, including the circumstantial evidence of the force of the collision.

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:

[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.

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.

In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”

In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.

When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in.  Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?

Both courts have notable differences.  Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction.  The maximum award for damages that can currently be made in the Provincial Court is $25,000.  The Supreme Court has an unlimited monetary jurisdiction.

For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court.  But what about more modest claims, claims that may fall in the $20,000 - $30,000 range?  Where should these be filed?

While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers.  Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court.  There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.

While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now.  Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.

In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC.  This was a Low Velocity Impact.  ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 - $2,000 should be awarded.

The Plaintiff’s lawyer sought a significantly higher award.  Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500.  In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court.  Specifically Judge Kay stated as follows:

This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically.  This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court.  In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life.  While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation - it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.

In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia.  Fault was admitted by the rear motorist.   The vehicles did not suffer much damage but the Plaintiff alleged injury.

The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:

She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[‑]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.

The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle.  Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries.  Dr. Boyle provided the following evidence:

[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.

[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.

[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.

[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.

[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.

[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.

The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion.  In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:

[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.

[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.

[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….

[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.

[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…

[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.

[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non‑pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.

Only an injured person truly knows the extent of their pain.  If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.

Further to my numerous previous posts on Low Velocity Impacts (LVI Claims) reasons for judgement were released today by the BC Supreme Court dealing with the relevance of photographs depicting minimal vehicle damage in Injury Litigation.

In today’s case (Deventer v. Woods) the Plaintiff was involved in 3 rear-end collisions.  Fault was admitted for all three crashes.   The Plaintiff claimed she was injured as a result of these crashes.  The matter was set down for a Jury Trial (ICBC normally sets LVI cases for Jury Trial) and proposed to put photos which ’show very little damage to an of the cars involved’ to the Jury.

The Plaintiff objected arguing that the photos were not relevant.  Madam Justice Fenlon disagreed with the Plaintiff and allowed the photos to be put to the Jury.  In coming to this conclusion Madam Justice Fenlon referred to and summarized 2 previous authorities dealing with this issue at paragraphs 8-13 and went on to hold as follows:

[14] In any event, I am of the view that photographs showing the extent of the damage to the vehicles in this case are relevant and therefore admissible. They are relevant because it is a matter of common sense and common understanding that the greater the force with which two vehicles collide, the more likely it is that occupants of those vehicles will be injured. The relationship between increased force and damage and increased probability of injury does not mean that parties involved in lower impact collisions that do not cause very much damage to the vehicles involved cannot suffer significant injuries. Many cases have recognized that serious injuries can result from collisions involving little or no damage, as Mr. Justice Thackray observed in Gordon.

[15] In Brar v. Johal, 2002 BCSC 150, Mr. Justice Cohen, at para. 11, held that the onus would be on the defendant to lead engineering or medical evidence to support the submission that a plaintiff’s injuries are inconsistent with the force generated by the impact between two vehicles.

[16] The relevance of photographs showing the extent of damage to the plaintiff’s and defendants’ vehicles can be tested by considering photographs of highly damaged vehicles. It would be hard to imagine plaintiff’s counsel in such a case arguing that photographs of the damage were not relevant to the issue of whether the plaintiff suffered injuries in the accident.

[17] I have considered whether the probative value of the photographs in this case is outweighed by their prejudicial effect on the jury’s assessment. For the reasons set out inMakara by Mr. Justice Barrow, I am of the view that such prejudice can be adequately addressed by way of appropriate instructions to the jury. Such directions would not simply be to ignore the photographs, as plaintiff’s counsel argued, but rather, a direction to put the pictures into the context of the evidence as a whole. The pictures are one piece of evidence about the impact and the vehicles, as is the plaintiff’s evidence.  There would also likely be a direction that the fact that no or little damage has occurred to vehicles does not mean that a plaintiff cannot be injured.

[18] In conclusion on this issue, the photographs are admissible, subject to objections about their authenticity or accuracy.

Another intresting aspect of this judgement is the Court’ discussion of the Plaintiff’s financial status.  The Defendants wished to highlight certain elements of the Plaintiff’s finances in support of an argument that  ”such information is relevant in assessing the quantum of damages for future wage loss because that information provides the context within which the jury must determine whether the plaintiff would have worked full-time in the future if the injuries sustained in the accident had not occurred.”

Madam Justice Fenlon agreed that such evidence is admissible in addressing a claim for future wage loss holding that:

[35] The plaintiff argues that the cases cited by the defendants in which a plaintiff’s financial circumstances were considered in relation to future wage loss were not jury cases. However, if the plaintiff’s financial circumstances are relevant to the assessment of future wage loss in a judge alone case, they are also relevant in a jury trial. The only additional question on a jury trial is whether the prejudicial effect of such evidence outweighs its probative value. The concern raised by plaintiff’s counsel, and it is a real concern, is that the jury may assume that because the plaintiff is relatively well-off she does not need to be compensated for future wage loss and they may reduce their awards for general and special damages as well. That would indeed be improper, but as I stated in relation to this issue on the admissibility of the photographs, I am of the view that the jury can be properly instructed to avoid this error and can be trusted to properly assess damages.

[36] In the circumstances of this case, I find that the probative value relating to the life insurance proceeds and the absence or existence of a mortgage outweighs the prejudicial effect of such evidence. However, I also find that the value of the new family home has such little probative value in relation to the propensity of the plaintiff to be working full-time or part-time that it is outweighed by the prejudicial effect of such evidence. I would therefore disallow that evidence.

[37] In conclusion on this issue, evidence relating to life insurance proceeds received, the payout of the mortgage on the family home at the time as a result of another life insurance policy, the existence of a current mortgage, and other evidence of that nature is admissible. Evidence regarding the value of the home the plaintiff is currently living in is not.

Reasons for judgement were released yesterday (Boyd v. Shortreed) by the BC Supreme Court, New Westminster Registry, dealing with a Low Velocity Impact (LVI).  The Plaintiff testified that she was involved in a rear-end crash and that she was injured despite having minimal damage to her vehicle.  Interestingly, the Defendant denied that the crash happened at all.

Mr. Justice Harvey rejected the Defendant’s evidence and concluded that a crash did occur.  Specifically he held that:

[33] The plaintiff reported the accident on April 19, 2005 by telephone and advised the adjuster for ICBC of the damage to her vehicle and the fact she had been injured.  Without first bringing the vehicle to ICBC, she took the car to an auto body shop for repairs and the bumper was fixed.  She testifies that the total cost of repairs was about $360.  No documentary evidence concerning the repairs was ever produced in evidence.  Photographs of the rear bumper of the plaintiff’s vehicle were of little assistance in determining whether there was any damage visible.  It is conceded that the damage amounted to nothing more than an abrasion or scratch requiring repainting.  There was no structural damage to the plaintiff’s car…

[59] There were other inconsistencies in the evidence of the defendant which cause me to reject his evidence as to the happening of the incident.  Accordingly, wherever the evidence of the plaintiff and the defendant conflict, I accept the evidence of the plaintiff as being the accurate version of events.

[60] That being found, I conclude that the defendant struck the plaintiff’s car from the rear.  While I accept there was a situation of peril created by the driver of the tractor trailer, the proximate cause of the collision between the defendant’s vehicle and that of the plaintiff was the inattention of the defendant by travelling too close to the rear of the plaintiff’s vehicle or, alternatively, the condition of the brakes on his vehicle which did not allow him to slow his vehicle in time to avoid hitting the plaintiff’s vehicle.

[61] I do not find the plaintiff’s reaction to the danger created by the tractor trailer driver to be wanting and decline to apportion any fault for the accident to her.  She reacted appropriately to a situation of emergency created by another driver who is not a party to the action.

[62] As a result, the defendant is 100% liable for the collision and resultant damages.

In valuing the Plaintiff’s Non-Pecuniary Damages at $25,000 Mr. Justice Harvey made the following findings with respect to her accident related injuries:

[76] The only new complaint arising from the accident appears to be the onset of mid-back pain.  This is based mainly on self report.  The extent and duration of these symptoms are described in some detail in the reports of Dr. O’Connor and Dr. McKenzie.  This complaint seems to have occasioned the most pain and has persisted, although significantly improved, to the date of trial.  Her recovery was estimated by the plaintiff to be at 85% of normal when she last attended Dr. McKenzie in August 2009.  There is no ongoing disability related to the complaints nor has there been for some since late in 2007.

[77] In summary, the plaintiff suffered an exacerbation of her previous symptoms in her neck and lower back.  I find these complaints had substantially resolved to their pre-accident condition inside of one year.  In April of 2006, according to the notes of Dr. Shah, there was a further onset of lower back pain but, on the whole of the evidence, I cannot relate this flare up to the accident of April 2005.  The injury to her mid-back was as a result of the accident.  It persisted longer and caused her more discomfort than the exacerbation of her pre-existing symptoms.

[78] Accordingly, taking all of this into account, I assess general damages in the amount of $25,000 in respect of her soft tissue injuries.

Yet another “Low Velocity Impact” Injury Claim went to trial and yet again the Court found that a compensable injury existed despite the minimal vehicle damage.

In today’s case (Bourdin v. Ridenour) the Plaintiff was involved in a 2005 Car Crash in Kamloops, BC.  This was a crash that apparently fell into ICBC’s LVI Program as the minimal amount of vehicle damage was stressed at trial by the defence lawyer (the Plaintiff’s vehicle damage cost only $316 to repair). Despite this Madam Justice Hyslop found that the Plaintiff was injured in the crash.  In valuing the Plaintiff’s non-pecuniary damages at $22,500 the Court summarized the Plaintiff’s injuries as follows:

[87] Ms. Bourdin had constant pain for approximately five months after the accident.  However, she acknowledged some improvement during that period.  She was plagued with headaches, the severity of which she had never experienced before.  Dr. Vlahos’ clinical records note that Ms. Bourdin, on February 8, 2008, complained of having a “…new onset of headaches.  Head feels like it is in a vise”.  This description is a similar description of the headaches Ms. Bourdin suffered as a result of the motor vehicle accident.

[88] I do accept that Ms. Bourdin suffered from headaches and that they occurred as a result of the accident.  She has been nauseous and vomited with such headaches, the last of which was two weeks before this trial.  According to Ms. Bourdin, headaches of this nature occurred after the accident.  However, Ms. Bourdin did not describe headaches of this nature to either Dr. O’Farrell or Dr. Travlos.

[89] Ms. Bourdin’s neck, shoulder and mid-back were injured as a result of the accident.  She continues to suffer pain from these injuries today, but they are occasional.  At trial, Ms. Bourdin stated that her neck and shoulder pain are now triggered when she is reaching for something, and sometimes everyday events caused neck and shoulder pain without explanation.  She acknowledged improvement in the spring of 2006 and that this has been ongoing from 2006 to the date of trial.  Her chiropractors, her massage therapists and her comments to Dr. O’Farrell and Dr. Travlos confirm this.  She told Dr. O’Farrell that at the time he examined her, her pain was intermittent.

In discussing the LVI Defence to Injury Claims Madam Justice Hyslop quoted a 2006 case (Jackman v. All Season Labour Supplies Ltd.) in which Mr. Justice Smith of the BC Supreme Court pointed out that the LVI defence is not a principle of law but rather “a creature of policy created by ICBC“.  Specifically Mr. Justice Smith held

[12]      On the issue of vehicle damage, I note the comments of Madam Justice Ballance in Robbie v. King 2003 BCSC 1553, at paragraph 35:

The proposition that a low velocity accident is more or less likely to have a propensity of injury is a creature of policy created by ICBC. Although lack of impact severity is by no means determinative of the issue as to whether a person could have sustained an injury, it is nonetheless a relevant consideration particularly with respect to soft tissue injury. Ultimately, the extent of Ms. Robbie’s injuries are to be decided on the evidence as a whole.

[13]      Although lack of vehicle damage may be a relevant consideration, it has to be balanced against the evidence of the plaintiff and the medical evidence, including the complete lack of any medical evidence to support the assertion that the injuries are inconsistent with vehicle damage.

Now for the legal history lesson:

While it is well accepted by BC Courts that ICBC’s LVI Policy is not a legal defense to a tort claim, rather, vehicle damage is just “a relevant consideration” ICBC Defence Lawyers often quote a 1982 case from the BC Supreme Court (Price v. Kostryba) in which Mr. Justice McEachern quoted another BC Supreme Court decision (Butlar v. Blaylock) in which the Court held that:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a contuining injury.

However, this often cited quote comes from a case that was overturned on appeal.  In 1983 the BC Court of Appeal overturned the trial decision of Blaylock and held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.

14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.

I hope this ‘history lesson’ helps anyone confronted with ICBC’s LVI Program denying a tort claim because of little vehicle damage.