The Death of the LVI Program?
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.