LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.