BC Supreme Court Calls LVI Defence a "Myth"

Reasons for judgement were released today dealing with a Low Velocity Impact (LVI).  ICBC, like many insurance companies, has set up a policy with respect to handling LVI Claims by denying that the Plaintiff could have sustained injuries where little vehicle damage occurred.
BC Courts have time and time again rejected such a position and in reasons for judgement released today by Mr. Justice Macaulay of the BC Supreme Court called out the LVI defence as a ‘myth’.
In today’s case (Thomas v.  Wormsley) The Plaintiff suffered mild to moderate soft tissue injuries in 2 rear-end car crashes.  The court awarded total damages of just over $30,000 for the Plaintiff’s injuries and losses.  In doing so, Mr. Justice Macaulay used the following strong language when referring to the defence often used by ICBC in response to Low Velocity Impacts:

[1] The plaintiff, Ms. Thomas, claims damages for injuries and losses caused by two car accidents, the first on October 3, 2005, and the second on October 13, 2007. According to Ms. Thomas, she suffered soft tissue injuries to her neck, shoulders and low back areas in each accident and was not fully recovered from the first accident at the time of the second.

[2] In each case, Ms. Thomas was at the wheel of her car in a stopped position when she was hit from behind by another vehicle. Both collisions occurred at minimal speeds. There was no damage to Ms. Thomas’ car in the first collision and minimal damage in the second. Nonetheless, as I and other judges have stated before, it is a myth to suggest that low impact correlates directly with lack of compensable injury: Lubick v. Mei, 2008 BCSC 555, at para. 5 and Jezdic v. Danielisz, 2008 BCSC 1863, at paras. 30 and 33.

[3] Persistent pain and discomfort may result from soft tissue injuries in such circumstances. Each case depends, of course, on the particular facts. There may be no injury in spite of a very severe impact or persistent injury after a minimal impact. While common sense suggests that one is less likely to be severely injured in a minimal impact collision, the real question is whether the injured party proved the injuries alleged to be caused by the collision on a balance of probabilities.

ICBC LVI Program, Low Velocity Impacts, Thomas v. Wormsley

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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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