ICBC Law

As I’ve discussed on many occasions, there is little credible medical evidence to suggest that a low impact collision cannot result in injury.  The LVI defense fails at trial far more than it succeeds.  That said, there is no denying that a claim for damages can be met with more skepticism if the triggering event is a low impact collision as opposed to a severe crash.  For this reason ICBC and other insurers like to highlight the minimal forces involved when Low Velocity Impact claims proceed to trial.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s claim (Ryan v. Klakowich) the Plaintiff was involved in a 2008 collision.  Fault for the crash was admitted.  The collision involved minimal forces with the defendant testifying that the impact was “like bumping a shopping cart against a counter“.  Despite this, and despite some reliability concerns the trial judge raised with the Plaintiff’s evidence, the Court accepted the Plaintiff sustained real injury.  In assessing non-pecuniary damages at $25,000 Madam Justice Ross provided the following reasons:

[73] Ms. Ryan’s complaints arise from a collision of very low impact, producing minimal damage to her vehicle and none to the defendant’s. Her injuries are said to be soft tissue injuries for which there are no objective indicators. In such circumstances Ms. Ryan’s credibility is of particular importance since the physicians are to large extent dependent upon her subjective reports in reaching their opinions.

[74] I find Ms. Ryan to be a poor historian. It is my impression that she minimized the extent and duration of the injuries she suffered in previous accidents, both in her testimony and in her reports to physicians in preparation for this litigation. She also minimized the significance of the other medical conditions with which she was dealing. It is her testimony that the burden of taking care of her mother did not interfere with her work or with her social life because her other siblings would fill in. However, this was inconsistent with what she told Dr. Anderson. He reported that she was in considerable distress concerning the care of her mother on several occasions, reporting that the disproportionate burden fell upon her and that her siblings were not providing sufficient assistance…

[78] The medical evidence is of limited assistance since the opinions are to a great extent dependent upon Ms. Ryan’s subjective reports. In addition, Dr. Anderson had not treated Ms. Ryan before the 2008 Accident and so had no personal knowledge of Ms. Ryan’s condition prior to the 2008 Accident. Ms. Ryan did not provide Dr. Jung with a full history. Finally, the additional investigations that Dr. Jung and Dr. Bishop recommended have not been undertaken. In the result, there is no medical opinion that bears on the causation of the neurological symptoms Ms. Ryan now complains of in her right arm.

[79] I accept that Ms. Ryan suffered mild to moderate soft tissue injuries to her neck and shoulder girdle in the 2008 Accident. As a consequence, she experienced pain and stiffness in her neck, upper back and shoulder and headaches. I accept that these symptoms have lingered. While it is the case that many, perhaps most people, would not have suffered such injuries in such an accident, I accept that the combination of her previous injuries, scoliosis and osteoporosis would render her more fragile and susceptible of injury…

[83] I award $25,000 in non-pecuniary damages.

As frequently discussed, the Low Velocity Impact (LVI) defence has been criticized many times by the BC Supreme Court.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating yet again that the LVI defence is not a recognized legal principle.

In today’s case (Dolha v. Heft) the Plaintiff was involved 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered a “mild to moderate” whiplash injury which resolved in several months.  The Court awarded the Plaintiff $7,000 for non-pecuniary damages.  Prior to doing so the Court criticized the LVI Defence as having “no scientific justification“.  In assessing damages Madam Justice Bruce provided the following reasons:

[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 and Price is not relevant on the facts of this case….

[19] Turning to the factors relevant to the assessment of non-pecuniary loss, it is apparent that the injuries suffered by the plaintiff were of a minor nature. While she experienced pain and required medication to alleviate this symptom, the plaintiff had full range of motion in her back and her neck throughout her convalescence. In addition, the symptoms experienced by the plaintiff were not sufficiently severe that she required passive modalities such as physiotherapy, massage therapy or chiropractic manipulation. The plaintiff last saw her doctor for pain due to accident-related injuries in late November 2008, some five months after the collision. The plaintiff’s injuries resolved entirely after a relatively short period of six to nine months. The headaches persisted for about a year; however, they decreased in intensity and severity over time. The plaintiff has no residual effects from the injuries. Lastly, the plaintiff’s lifestyle was only moderately impacted by the injuries. She was unable to run for a couple of months.

[20] The plaintiff suffered some emotional anxiety as a result of the accident and had sleep difficulties. The sleep problem resolved quickly and the increased anxiety was modest in severity and did not persist over a lengthy period of time.

[21] Lastly, the plaintiff is a relatively young woman who does not suffer from any particular emotional or physical condition that rendered or could have rendered the injuries she suffered more disabling.

[22] Having regard to the range of non-pecuniary damages awarded in the cases cited by the parties, and the particular circumstances of the plaintiff, I find an award of $7,000 is appropriate.

Further to my dozens of previous posts discussing ICBC’s Low Velocity Impact (LVI) Defence to tort claims involving crashes with little vehicle damage, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, once again rejecting this defence.

Today’s case is a great example demonstrating that compensable injuries can be sustained even in true ‘low velocity impacts‘.  In today’s case (De Leon v. Harold) the Plaintiff was involved in a two vehicle collision in 2007 in Vancouver, BC.  The Defendant rear-ended the Plaintiff’s vehicle.  Fault for the crash was admitted.  The trial focussed on whether the Plaintiff sustained any injuries.

There was no dispute that the collision was minor.  The Plaintiff described the impact as a “bump“.  The Defendant testified that her car “tapped” the Plaintiff’s car.  The modest impact resulted in $0 in vehicle damage.

Despite this the Plaintiff was injured.  The injuries were, fortunatley, relatively modest and made a meaningful recovery within 6 months.  ICBC defended the case based on the LVI program and argued that the Plaintiff was not injured in the collision.  Madam Justice Power rejected this argument and in doing so repeated the following helpful reasons addressing the LVI defence:

[14]         In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:

[5]        The courts have long debunked 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.), Thackeray 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 the 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 not heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on 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. . . .

[15]         In Dao v. Vance 2008 BCSC 1092 Williams J. stated:

[18]      This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is, it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19]      In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle is slight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

Madam Justice Power assessed the Plaintiff’s non-pecuniary damages at $12,000 and in doing so made the following findings about her injuries:

[19]         I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as the result of the accident. I am satisfied that the injuries were substantially resolved within two months of the accident as the result of the plaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completely resolved within six months…

[22]         Having regard to the fact that each award must be based on the unique circumstances of the case, and that the plaintiff’s stoicism is a factor that should not penalize the plaintiff (Giang v. Clayton 2005 B.C.J 163 2005, (B.C.C.A.)), I am of the view that an appropriate award for the plaintiff’s non-pecuniary damages in this case is $12,000. The plaintiff will be awarded $1,200 for four days of lost work as the agreed-to amount of the parties for special damages.

[23]         Therefore the total damage award is $13,200. Costs may be spoken to or written submissions may be made at the agreement of the parties.

I’ve written numerous times about the so-called “Low Velocity Impact Defence” to tort claims and that is has been soundly rejected by the BC Supreme Court.  Reasons for judgement were published this week on the BC Supreme Court website further criticizing the LVI Defence.

In this week’s case (Lee v. Hawari) the Plaintiff was injured in 2006 motor vehicle collision.  The Defendant argued that the Plaintiff could not have been injured because this was a low velocity crash.  Madam Justice Adair disagreed and found that the Plaintiff suffered “mild to moderate soft-tissue injuries to her neck, shoulder (including the right trapezius strain) and back, and she continues to suffer some symptoms, including pain, from those injuries as of trial“.  The Court went on to award the Plaintiff $21,000 for her non-pecuniary damages.  Prior to doing so Madam Justice Adair provided the following sound criticism of the LVI defence:

[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.

Published reasons such as these aimed at insurance companies behind the defendants are a welcome reminder that deciding whether compensable injuries were sustained in a collision should be determined by viewing all of the evidence, not by artificial standards giving undue focus to vehicle repair costs.

I’ve written numerous times that ICBC’s Low Velocity Impact Defence (”LVI”) is not a legal principle.  A defence based on this principle was rejected yet again in reasons for judgement released today by the BC Supreme Court, Vancouver Registry,

In today’s case (Hunter v. Yuan) the Plaintiff’s vehicle was rear-ended by a taxi driven by the Defendant in 2006 in North Vancouver, BC.  Fault for the crash was admitted by the rear motorist.

Both parties agreed that the accident was “minor in nature“.  Despite the minor nature of the crash the Plaintiff was injured and continued to be troubled by her injuries by the time the claim reached trial some 4 years later.  The Defendant argued that this was a “minor accident which resulted in a minimal injury“.  In keeping with ICBC’s LVI policy the Defendant argued that the Plaintiff should receive nothing for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) or in the alternative “If the court were to award damages for non-pecuniary loss, the defence suggests that an award should be very modest“.

Madam Justice Morrison rejected the defence submission and awarded the Plaintiff damages for her losses including $35,000 for non-pecuniary damages.  In arriving at this figure the Court provided the following reasons:

[68]        First, I found the plaintiff to be entirely credible.  She did not seek to exaggerate, and gave her evidence in a very direct manner.  She was responsive to questions, and did not seek to avoid or be defensive with the tough questions posed on cross-examination.  I certainly accept her evidence with regard to her symptoms, past and present.  There is no credible or reliable evidence of any pre-existing injuries or conditions, and her injuries and ongoing symptoms are due to the accident of October 20, 2006.

[69]        It is true that the force of the accident was not major, but the evidence points to no other cause of the injuries and symptoms experienced by the plaintiff, other than the accident of October 20, 2006.

[70]        To say that the plaintiff experienced only three weeks of disability, or six or eight weeks at the most, is to ignore most of the evidence of the plaintiff, her family doctor, her fiancée, her father and Dr. Travlos.

[71]        Although by the summer of 2008 the plaintiff felt she was 85% recovered, she testified that at the present time, the flare-ups occur frequently, sometimes once every week or two, or more often, if she does activities that cause such flare-ups.  The flare-ups result in tension and muscle knots between her shoulder blades, particularly toward her right shoulder and neck area, and headaches occur.  She has sleep disruptions, difficulty getting to sleep, and voluntarily avoids some activities that she enjoyed prior to the accident; she avoids them rather than put herself in a position where pain or a flare-up will occur.

[72]        The evidence would indicate that her recovery has plateaued.  She takes Tylenol and Cyclobenzaprine on occasion, and she finds that she must remain active and exercise, as inactivity will make her symptoms worse.

[73]        The plaintiff’s pain is not chronic and continuous, but she suffers pain and increased pain with certain kinds of exertion.  It has been four years since the accident occurred, and Ms. Hunter continues to have pain in her shoulders, particularly her upper right back, and neck.  Ordinary daily activities such as carrying groceries, doing the laundry, vacuuming, and certain types of cleaning cause flare-ups, which result in pain.

[74]        Counsel for the plaintiff, in addressing the issue of non-pecuniary damages, has cited six cases where non-pecuniary damages ranged from $30,000 to $50,000.  Relying primarily onJackman v. All Season Labour Supplies Ltd. and Crichton v. McNaughton, the plaintiff submits that an award of $40,000 would be reasonable for non-pecuniary damages.

[75]        I agree that those two cases are helpful, given the evidence in this case, and I would award $35,000 for non-pecuniary damages.

This judgement demonstrates the reality that minimal crashes can result in injury including long-standing injury. The LVI Defence is divorced from medicine and law.  The rare occasions when the LVI defence succeeds before a judge is where the Plaintiff is found to lack credibility.   When injuries are supported with medical evidence it is rare for a lack of substantial vehicle damage to prove fatal to a personal injury lawsuit.

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.