ICBC Law

When ICBC denies compensation for an injury claim due to their LVI Program the credibility of the Plaintiff is usually put squarely at issue. In Soft Tissue Injury Claims ICBC often challenges the veracity of the Plaintiff alleging that the injuries are being exaggerated or perhaps wholly made up.

Reasons for judgement were transcribed today by the BC Supreme Court, New Westminster Registry, dealing with such a defence.

In today’s case (Jezdic v. Danielisz) the Plaintiff was involved in a 2003 BC Car Crash.  The crash occurred in a parking lot and was a low velocity impact which resulted in little vehicle damage.  The Plaintiff alleged that she suffered various injuries in this collision.  Mr. Justice Sigrudson dismissed the Plaintiff’s claim finding that she ‘has not dischared the burden on her to establish on a balance of probabilities that she was injured in the car accident’.   In reaching this conclusion the Court made the following comments on credibility, low velocity impacts and soft tissue injury claims:

[30] I should consider the circumstances of the collision.  I am mindful that persistent injuries can arise from low velocity collisions.  This was a low velocity collision.  The defendant’s pickup truck was backing out of a spot two spaces (or at least one space) over from the plaintiff’s father’s vehicle.  The parking lot was slightly higher on the side where the defendant was parked, and lower on the side where the plaintiff’s vehicle was.  The accident occurred, I find, when the defendant’s vehicle backed into the plaintiff’s vehicle at an angle.  The defendant’s bumper rode up over the plaintiff’s bumper causing it to compress and split the paint on the bumper, and then the defendant’s vehicle struck the area around the trunk with the left rear corner of the defendant’s vehicle’s bumper.  The damage to the plaintiff’s father’s vehicle was to the lower part of the trunk.  The cost of repairs was $1,122 and the trunk was still operational.  There was no misalignment of the plaintiff’s bumper.

[31] I found the defendant to be a reliable witness.  The circumstances of the accident seem to accord with his evidence.  I think he was prepared to concede things when his evidence was shown to possibly be incorrect.  I accept that he was moving slowly – he described backing up at “a snail’s pace” with his foot on the brake pedal.  The evidence indicates that there were cars parked close to him that required him to move slowly as he backed out.  However, he was careless in ensuring that he did not make contact with the vehicles behind him as he was backing up.  He testified that he did not feel the impact, but agreed on cross-examination that it was possible that the plaintiff’s car moved two to three inches.

[32] Mr. Addision points to the fact that the defendant’s bumper appears lower on the left side, and the fact that there was a “wow” in the bar that attaches the bumper to the frame, but I find it extremely unlikely that those things occurred in this accident.  The accident, I find, was a very minor one with minor damage.

[33] Given the nature of the accident, it is perhaps somewhat surprising that the plaintiff says she was thrown first into the steering wheel and then back, and had immediate pain in her neck and her back.  But as has been noted, there is no rule of law or physics that a person cannot be injured in a low speed collision.  There was no expert evidence lead as to the anticipated body movement in an accident of the type that the plaintiff described.  However, I find some merit in Mr. Addison’s submission that it is probably difficult for a person to recall with any precision exactly how her body moves when she is in a collision.

[34] Although I found that Dr. Petrovic was a reasonable witness, his evidence depended on the veracity and reliability of the symptoms that were described to him by the plaintiff from time to time.

[35] Let me turn to the evidence of the plaintiff.  I have a number of concerns about the plaintiff’s evidence.  The plaintiff’s evidence contained significant inconsistencies in the manner in which she described her symptoms at trial, to her doctor and on discovery.

(a)        She testified at trial that her neck pain got better in the first eight months and there were times that she did not have neck pain, but on discovery she said that the pain in her neck was constant.

(b)        At trial, she said that the back pain was there for two years and got better, but came back depending on the weather.  However, on discovery in December 2005, more than two years after the accident, she said that the back pain was as constant and severe and had not changed since the accident.

(c)        Her description of her symptoms and their duration is inconsistent with Dr. Petrovic’s report that on July 17, 2003, three months after the accident, the plaintiff noted no neck or lower back symptomatolgy.

(d)        Her description of the fact that her injuries had resolved by about two years after the accident was inconsistent with her description to Dr Sovio in May 2007, four years after the accident, that she had pain in the back since the time of the accident.

[36] There were other aspects of the plaintiff’s evidence which were contradictory to other evidence that she gave or inconsistent with evidence that I accepted on a balance of probabilities.

(a)        Her evidence at trial was that she had spoken to Dr Petrovic’s office rather than going in, that she received the doctor’s advice from his receptionist but did not speak to him on the telephone, but on discovery I find that she said that she had spoken with the doctor on the telephone;

(b)        Her evidence about whether she was a member of the Lady Dyna-fit health club before the accident was different at trial than on discovery.  She explained her evidence at trial that before trial she went to that club on a free pass or tickets or on a promotion before the accident but the evidence of the owner Ms. Humphries suggests that the ability to use the club on that basis was quite limited.  This evidence suggested to me that on discovery and at trial she exaggerated to a degree the amount of her physical activity prior to the accident.

(c)        The plaintiff’s evidence at trial that she saw the truck moving pretty fast towards her vehicle was inconsistent with her evidence on discovery where she said that she heard the truck and did not see it.

(d)        In a statement given by the plaintiff after the accident she said that the impact moved the car she was in one meter but at trial she professed not to know how long a meter was and held her hands up four to six inches indicating that might be the distance that the car moved

(e)        She said at trial that she was upset after the accident and told the defendant it was because of the pain that she suffered but the defendant denied that she said that.  I accept the defendant’s description of the accident and of his subsequent discussion with the plaintiff.

[37] In assessing the plaintiff’s credibility I must take into account that English is not her first language, but also that she has been in Canada for ten years and appeared to me to be able to converse easily in English.  At the end of her cross-examination, she was indicating a lack of understanding of the terms and questions used during the discovery.  The plaintiff was offered an interpreter for the discovery but did not take that offer up.  Her inability to understand questions near the end of her cross-examination I found to be disingenuous.  It appeared to become an excuse that she felt she could use to fend off questions on cross-examination that she found difficult.  She appeared to be able to use the transcript from the discovery to analyze the questions for the purpose of explaining her evidence.

[38] I think that the inconsistencies in her evidence that I described are significant and are not explained by her lack of understanding of the questions on discovery or at trial.

[39] The burden is on the plaintiff to prove on a balance of probabilities that she was injured in the accident that was caused by the admitted negligence of the defendant.  Even in the absence of any objective symptoms, the court can be and often is persuaded by the evidence of the plaintiff.

[40] What is my overall assessment?  Has the plaintiff’s evidence persuaded me that she was injured, and the extent to which she was injured in the accident?

[41] I have concluded that on all the evidence that plaintiff has not discharged the burden on her to prove that she has suffered any injury in this accident.  I find the plaintiff’s evidence to be exaggerated and significantly inconsistent both internally and with facts that I find have been established such that I have serious reservations about her credibility to the extent that I can not rely on it alone to determine whether the plaintiff has discharged the burden on her to prove that she was injured in this accident.

[42] I find no support for the plaintiff’s case in the other evidence in this trial.  Dr. Petrovic’s report depends entirely on the reliability of the plaintiff’s reporting and accordingly his report can be given little weight.  I found no evidence that provided corroboration for the plaintiff’s alleged injuries.  The circumstances of the accident I find were very minor and did not provide corroboration for the injuries of the type that the plaintiff asserts.

[43] Looking at the plaintiff’s evidence in light of all of the evidence, I have concluded that the plaintiff has not discharged the burden on her to establish on a balance of probabilities that she was injured in the car accident.

[44] The plaintiff’s action must be dismissed.

(Please note the case discussed in this post was overturned by the BC Court of Appeal in reasons for judgment released on September 21, 2010.  You can go to my September 2010 archives to read my summary of the BC Court of Appeal Decision)

Reasons for judgment were released today by the BC Supreme Court (Mariano v. Campbell) awarding a Plaintiff just over $115,000 as a result of injuries sustained in a 2006 rear end collision.

This was an ICBC Claim that apparently fit into ICBC’s Low Velocity Impact (LVI) Program.  The vehicles sustained modest damage and the ICBC Claims Lawyer defending the Claim argued the Low Velocity Impact defence.  The details of this are set out in paragraphs 33-41 of the judgment.

[33] The defendant says the accident was a low velocity impact claim.  The cost of repair for the Ms. Mariano’s 2005 Ford Escape was $1,712.96.  The cost of repair to Ms. Campbell’s 2000 Honda Civic was $3,714.07.

[34] The defendant argues that Ms. Mariano’s injuries should be consistent with a modest low impact accident and anything more than modest injuries from the accident are an unreasonable consequence.  Relying on Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 11-18, the defence argues that the injuries alleged are not a reasonably foreseeable consequence of the minor motor vehicle accident.

[35] Ms. Campbell was called by the defence presumably to testify that the collision was only a minor one.  However even Ms. Campbell admitted to sustaining whiplash injuries.

[36] Ms. Campbell was stopped in gridlocked traffic waiting for the traffic light to change.  When she saw the light turn green and traffic ahead of her starting to move, Ms. Campbell starting moving her vehicle.  When Ms. Mariano’s vehicle suddenly stopped, Ms. Campbell did not apply her brakes before she rear-ended the Ford.  When she got out of her vehicle, Ms. Campbell saw a stalled vehicle, one or two vehicles in front of her.

[37] Ms. Campbell could not estimate the speed of her vehicle at the time of impact but defence relies on her evidence that another car could not have fitted in between her vehicle and Ms. Mariano’s vehicle.  However, Ms. Campbell said that on the impact, she immediately felt pain in her neck, the middle of her back, and her right arm.  She went into shock and her whiplash injuries took three months to resolve.

[38] The defendant tried unsuccessfully to attack Ms. Mariano’s credibility and argues that because of the minimal impact, Ms. Mariano can only have suffered minimal injuries.  However I find Ms. Mariano a very credible witness.  She continues to work despite her symptoms.  The pain in her neck and shoulders prevents her from working the way she used to work, and from doing the things she used to enjoy doing.  She was unable to buy her sons a big pumpkin for Halloween as she had always done before because she is now unable to carry a big pumpkin.  Ms. Mariano became quite visibly distressed when she described the activities she can no longer participate in with her children because of her injuries or because she is now simply too tired at the end of the work day to do anything else.

[39] The defendant points to Ms. Mariano’s application for mortgage life and disability insurance where she filled in “March 2006” as the “date of the last episode” of neck pain and that Dr. Darby wrote a note to the insurance company indicating that Ms. Mariano had fully recovered from the accident with no complications or sequelae.

[40] The statements may not have been entirely accurate but it was understandable.  Ms. Mariano tried to put herself in the best light she could so that she could obtain, as she did before the accident, mortgage disability insurance with no exclusions.  The defendant’s negligence caused the insurance company to dramatically limit the mortgage disability insurance available to Ms. Mariano through no fault of her own.  The defendant should not be heard to be complaining too loudly.

[41] Terry Watson, an estimator for the Insurance Corporation of British Columbia, testified that neither Ms. Mariano’s vehicle nor Ms. Campbell’s vehicle sustained structural damage.  However, the hood of Ms. Campbell’s vehicle collapsed and slid under the Ford Escape, striking the spare tire underneath.  Mr. Watson agreed that that the impact of the collision was likely not absorbed by the bumpers.

The Defendants ICBC Claims Lawyer went on to argue that minimal damages should be paid because more severe injuries are not reasonably foreseeable from a minor or modest collision.

Madame Justice Loo rejected the defence arguments and accepted that the Plaintiff was indeed injured in this collision.  The court found that the Plaintiff suffered soft tissue injuries which have resulted in chronic pain and that there was a chance that these symptoms would linger in the future.

Damages were awarded as follows:

1.  Non Pecuniary Damages: $30,000

2.  Past Wage Loss: $45,428.91

3.  Loss of Earning Capacity: $15,000

4.  Special Damages: $574.16

5.  Cost of future care: $1,000

6.  cost of re-training: $23,307

Reasons for judgement were released today awarding a Plaintiff close to $120,000 in damages as a result of a 2006 BC car accident.

The accident occurred when the Defendant failed to see the Plaintiff’s vehicle and struck the driver’s side door of the Plaintiff’s vehicle.

All the doctors who gave evidence at trial agreed that the Plaintiff ‘suffered a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain…’

The issue at trial was one of causation, that is, did this accident (which apparently did not cause a lot of vehicle damage) cause the Labral tear?  After hearing from several medical witnesses Madam Justice Gerow concluded that there was a causal connection, finding that ‘I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that (the Plaintiff’s) degenerative disease is minimal at this point.’

Dealing with the argument ICBC often makes at LVI trials (low velocity impact) that ‘the force of the accident was not such that it could have caused the injuries to the lumbar spine’ Madam Justice Gerow stated as follows:

35]            The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle.  The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries. 

[36]            Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered.  The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37]            As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.

In the end, damages were assessed as follows:

Non Pecuniary Damages: $70,000

Past Wage Loss: $13,452

Loss of Earning Capacity: $30,000

Special Damages: $1,498

Cost of Future Care: $5,000

This case is worth reading for anyone advancing an ICBC claim where the issue of causation of a disc bulge is at issue to see the types of competing positions that can be advanced by the doctors at trial along with the analysis that a court can engage in to navigate the waters of expert opinions.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff compensation as a result of a 2002 motor vehicle collision.

The collision happened in Victoria.  It was a rear end crash and the Defendant admitted fault.  This appears to be a crash that fit into ICBC’s Low Velocity Impact (LVI) criteria as the vehicles suffered minimal damage.

The Plaintiff claimed significant injury which was on-going more than 5 years post collision which would impact her future earning capacity.  The defence position was that that crash caused a mild soft tissue injury which resolved by October 2003.

The court found that the crashed caused a 2 year soft tissue injury and made the following findings:

[26] I have some difficult in assessing (the Plaintiff’s) evidence.  She describes the resulting dent in her car as huge, yet it does not look like that in the pictures and the cost to repair was estimated at only $53.  She said she was in incredible pain immediately after the accident, yet Ms. Lobb spoke to her and was under the impression everyone was fine.  No ambulance was called, nor did she seek immediate medical attention which I would expect would happen if the pain was immediately “incredible” and “excruciating”.  On the other hand, I have no doubt that (the Plaintiff) suffered pain caused by the accident which, as documented by the medical reports, gradually got worse over the ensuing weeks.  I also have no doubt that (the Plaintiff) continues to have pain to this day – it seems to me on looking at her that it is written in her face.  As Dr. Vincent testified, people do not go for injection therapy unless they have pain.  Furthermore, there is evidence from her mother, her friend and her employers that she is not the high energy person she once was.  The difficulty is to assess the degree to which the collision is the cause of her pain and the true effect of that upon her life.  There is a tendency to attribute a multitude of difficulties following a car accident to that one cause when often there are many…….

[31] (the Plaintiff) bears the onus of proving that the condition for which she seeks compensation was on the balance of probabilities caused by the December 30^th, 2002 collision. I  find on the evidence that she did suffer a mild to moderate soft tissue injury to her neck and back as initially diagnosed in her early months of treatment by Dr. Down which was caused by the collision.  I am not persuaded, however, on the balance of probabilities, that her condition caused by the accident injuries extended beyond the two year period initially foreseen by Dr. Down.  She was clearly on a course of recovery in that two year period.  What happened thereafter has not been proven to have been caused by the December 30^th, 2002 collision.

[32] I assess (the Plaintiff’s) general damages for a mild to moderate soft tissue injury to her neck and back extending over a period of two years at $30,000.

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.

The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.

When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.

When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.

Rule 57(10) of the BC Supreme Court rules states that

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?

Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ’sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.

The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.

In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.

The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.

As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.

The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.

The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.

The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ’something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.

One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:

In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.

All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.

For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.

The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.

The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.

The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.

This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.

The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.

In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”

Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.

The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.

In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ’special damages’.

Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.

The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.

A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.

The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”

The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.

In the end the court awarded damages as follows:

Pain and Suffering: $15,000

Past Wage Loss: $4,790.50

Mileage Expenses for treatments: $50

This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.

Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.

In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.

In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:

[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.

What made this judgement interesting is that the Defendant denied that an accident occurred at all.

The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.

After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.

In the end Mr. Justice Wilson awarded damages as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.

I have blogged several times with respect to ICBC’s LVI (Low Velocity Impact) Defence with a view towards educating BC vehcicle collision victims that ICBC’s LVI Policy is not the law, rather it is an internal policy geared towards saving ICBC money. 

ICBC’s LVI policy, when used in the defence of an injury claim, is often rejected by BC courts.  The LVI policy has one fatal flaw, assuming that the amount of vehicle damage (or lack therof) is related to the severity or possibility of sustaining injury. 

This week reasons for judgement were published in which the ICBC defence lawyer ran the LVI Defence.  Mr. Justice Macaulay rejected this defence and in doing so used the best language I have yet come across as an ICBC claims lawyer in explaining the flaw in the LVI Program’s logic.  At Paragraph’s 3-4 the court summaries the evidence led by the ICBC defence lawyer as follows:

[3]                According to Jiang, a line of traffic was stopped waiting for the left-turn signal.  When the light changed, the line started to move.  Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it.  He said the vehicles “barely touched” and that the impact was “very light, just a little boom”.

[4]                The evidence of the ICBC estimator confirms that the impact was relatively minimal.  The Lubick vehicle sustained cosmetic damage to the rear bumper.

Mr. Justice Macaulay then goes on to dismiss the logic behind the LVI policy in very strong words.  At paragraphs 5-6 of the judgement the court takes the following very harsh view of the so called LVI Defence:

Do you have questions about an LVI claim denial?  If so feel free to contact the author of this article for a no-obligation consultation.