Low Velocity Impact Defence – Not Based on Science, Not Even "Common Sense"
Adding to this site’s archived posts addressing Low Velocity Impacts, reasons for¬†judgement¬†were released last week by the BC Supreme Court, New Westminster Registry, rejecting this defence.
In last week’s case (Christoffersen v. Howarth) the Plaintiff was involved in a 2010 rear end collision. ¬†Fault was admitted by the Defendant. ¬†The Plaintiff suffered a soft tissue injury which was still symptomatic at the time of trial but there was an “excellent prognosis” for full recovery. ¬†The Court assessed non-pecuniary damages at $35,000 but prior to doing so Mr. Justice Weatherill provided the following comments criticizing the LVI Defence:
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision.¬† Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In order to accept the defendant‚Äôs argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision.¬† I am not prepared to do so.¬† I found each to be credible, honest and forthright.¬† Their evidence was uncontroverted by the defendant. ¬†At most, the plaintiff‚Äôs evidence was shown on cross examination to have been exaggerated in a few minor respects.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan.¬† No evidence was led by the defendant regarding the amount of force that the plaintiff‚Äôs body was subjected to during the collision or how the shock absorbers built into the vehicles‚Äô bumpers affected the damage that otherwise would have been sustained.¬† In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I accept that the collision was relatively minor.¬† However, even a low impact collision can cause injury:¬†Lubick v. Mei, 2008 BCSC 555 at paras. 5-6.¬† Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff‚Äôs vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal.¬†
¬†¬†¬†¬†¬†¬†¬†¬†¬†Causation has been established by the plaintiff.