$115,000 Awarded in ICBC Low Velocity Impact (LVI) Claim

(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

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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