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BC Court of Appeal – Forseeability Is No Defense To Low Impact Collisions

Last year a BC Supreme Court level judgement dismissed a personal injury claim in part due to the logic that it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot. Today the BC Court of Appeal overturned this judgement finding the trial judge was wrong in their application of the foreseeability principle and that physical injury is foreseeable from collisions, even minor ones.

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Plaintiff Ordered to Pay Double Costs After Failed Parking Lot Collision Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.
In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”
Prior to trial ICBC made a formal settlement offer of $5,000.  ICBC asked for double costs.  The court agreed noting the offer ought to have been accepted.  In granting the request for double costs Mr. Justice Brown provided the following reasons:
[4]             The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.
[7]             I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.

Court Dismisses "Low Velocity Impact" Collision Claims in Part Based on Forseeability

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissed claims for injuries from 5 separate collisions.
In today’s case (Greenway-Brown v. Kyung) the Plaintiff was involved in 5 separate collisions and alleged injury.  The Court dismissed two of the claims based on liability.  Of the remaining 3 the Court found that the Plaintiff did not meet her burden in proving injury.  Interestingly, the Court then went even further and noted that as a matter of law it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot.  This seems to contradict the reasoning from the BC Court of Appeal and numerous other so-called low velocity impact prosecutions.  In any event, Mr. Justice Macintosh provided the following reasons extending the Mustapha reasonsing to low velocity collisions:

[51]        Ms. Brown has not established the foreseeability that an injury would occur, from the facts in accidents 2, 3, and 5, in a person of ordinary fortitude.  While the Court in Mustapha recognizes that a defendant must take a plaintiff as it finds him, or her, for purposes of damages, focusing on a person of ordinary fortitude, for the purposes of determining foreseeability, will not be confused with the “eggshell skull” situation, where, as a result of a breach of duty, the damage inflicted proves to be more serious than expected.

[52]        Mustapha was addressing mental injury, but in my view, the reasoning has application to claims of physical injury as well.  Mustapha finds, in part, that there is a threshold test for establishing compensability at law, which precedes a so-called thin-skull analysis.  Before a court will embark upon a thin-skull analysis, a plaintiff must first establish the foreseeability that an injury would occur, or could occur, in a person of ordinary fortitude.  In the three accidents, 2, 3, and 5, all of the available objective evidence, including the photographic evidence of the Jeep after several of the accidents, makes it wholly improbable that the Plaintiff suffered damages, or could suffer damages, from the three parking lot episodes.

[53]        The Plaintiff’s mental and physical conditions, of which she complains, pre-existed the second accident upon which she sues, and were exacerbated by her obesity and other physical conditions unrelated to the three accidents.  A defendant need not put a plaintiff in a position better than his or her position but for the defendant’s conduct.  See, Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 34–36.  For Ms. Brown to receive damages from accidents 2, 3, and 5 would be to offend the principle expressed in Athey.

Court Dismisses Injury Claim in "Slow-Moving Parking Lot Accident"

I have spent much time documenting judicial treatment of the so-called ‘low velocity impact’ defence.  In short, courts routinely accept motorists can be injured in low velocity collisions.  Despite this, courts occasionally dismiss an injury claim involving modest forces.  Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, with such an outcome.
In today’s case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.
The Plaintiff alleged injury.  The Court rejected this noting that “ I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury“.
In dismissing her injury claim Mr. Justice Brown provided the following reasons:

[53]         I will now discuss the evidence and state my findings:

1.       The Chevrolet was stationary at impact.

2.       The defendant, Mr. Raveendran, started the Honda. He took his foot off the brake. The tires slowly completed their circumference, two to three turns of its tires, before the right side of the Honda contacted the left driver-side door of the Chevrolet.

3.       The vehicles were at a slight angle on impact.

4.       The point of impact was not bumper to bumper. There is no indication the solid substructures of the vehicles were involved. The visible damage was not deeply intrusive into the bodies of the vehicles; a fairly shallow dent of the surface of the driver’s door of the Chevrolet and some surface scraping of the right rear panel and leading edge of the bumper on the Honda is all that is noteworthy.

5.       The plaintiff relied on the fact that the cost of repairing the Honda was $1,200 and the Chevrolet, written off, $1,500. Considering the cost of vehicle repairs generally, these figures do not denote significant impacts, rather, more likely, in my opinion, the costs of materials and labour for prepping, taping, sanding, painting, et cetera. There is no indication of parts replacement or significant structural damage requiring repair.

6.       There is no evidence either vehicle was moved from its path or static position, or moved about by the impact.

7.       The plaintiff complained only of a jolt, the nature of which she had difficulty explaining, but she denied her body came into contact with the interior of the car or that she was moved about.

8.       The video surveillance segments, viewed in congress with the photographs of the vehicle damages, which the court viewed in the range of 10 times, convey a strong impression of a very minor impact, most unlikely to cause injuries, let alone ones requiring a recovery period of three to four years.

9.       The plaintiff had recovered from the injuries related to her previous accident.

10.     The plaintiff reported immediate onset of symptoms, but instead of reporting to Dr. Kaler’s office about 100 feet away, or to the hospital, drove to the ICBC Claim Centre to report the Accident.

11.     The plaintiff submits the fact she attended physiotherapy sessions after the birth of her child argues against invented symptoms. But as I mentioned earlier, there is no evidence showing for what reasons she attended the clinics, the nature of the treatments, the symptoms reported or observations made. Dr. Kaler had clinically noted concerns of morbid obesity; and, as the plaintiff granted, giving birth to a child can cause physical problems. I cannot find a link between the need for physiotherapy and the alleged trauma.

12.     As for depression, Dr. Kaler’s evidence shows the plaintiff earlier had been concerned about becoming pregnant again. The basis for linking this minor accident to alleged depression, say, stemming from a chronic pain syndrome, is not present. There is no diagnosis of chronic pain, for example, to generate a logical medical link between physical trauma and depression usually seen the cases.

13.     It is not plausible, and there is no persuasive medical legal evidence to show, that it would take the plaintiff three years to recover from trauma allegedly caused by the very modest forces involved in this parking accident.

[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[56]         In Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:

[18]      I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

[19]      An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.

"Clearly Established Under Canadian Law" That the Low Velocity Impact Defense Misses the Mark

Although the “Low Velocity Impact” defense seems to be raised less and less, occasionally it still rears its head in personal injury trials.
Today, reasons for judgement were released by the BC Supreme Court, New Westminster Registry, finding that this defense misses the mark.
In today’s case (Duda v. Sekhon) the Plaintiff was injured in two relatively minor collisions.  The Court ultimately awarded the Plaintiff damages for his injuries but prior to doing so made the following pointed comments about the merits of the LVI Defence –

[62]         Counsel for the defendants spent considerable time and effort making the submission that the two accidents did not cause significant motor vehicle damage. However, it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

$14,000 Non-Pecuniary Assessment Following "Mild to Moderate" Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for relatively modest injuries sustained in a collision.
In today’s case (Zhibawi v. Anslow) the Plaintiff was involved in a minor collision caused by the Defendant.  The Defendant acknowledged fault but argued the collision was so minor no injury could have been sustained.  The Court rejected this argument.  The court did, however, have some difficulties with the Plaintiff’s privately retained expert witness noting his opinions “did not comply with the duty” owed to the Court.  Mr. Justice Williams did conclude that the Plaintiff suffered ‘mild to moderate’ soft tissue injuries.  In assessing non-pecuniary damages at $14,000 the Court provided the following reasons:

40]        With all that said, I have reached certain findings concerning the injuries that were sustained by the plaintiff and the effect that they have had upon her. I conclude that she sustained a mild to moderate soft tissue injury. That resulted in some neck and back discomfort. Within approximately two weeks, she was able to return to work.

[41]        The injuries had a limiting effect upon her activities for a time, including her running and housework. I find that, within a few months, their impact on her ability to work at her job was manageable and modest.

[42]        There were complaints of headache following the accident, but it is in my view quite relevant that Ms. Zhibawi had been experiencing significant headaches as part of a long-established neurological condition that also included fainting and light-headedness. While the plaintiff sought to draw a distinction between the pre-accident headaches and those she had after, I find that the headaches that are attributable to the defendant’s negligence are modest.

[43]        I conclude the bulk of the plaintiffs discomfort resulting from the motor vehicle accident was substantially resolved within six to nine months.

[44]        I do not accept that the injuries she sustained have continued in any meaningful way to the time of trial, and I find no basis to conclude that she will suffer any effects into the future…

[50]        I conclude that a fit and appropriate award of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life is $14,000.

Low Velocity Impact Engineering Evidence Found to be Unhelpful

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, assessing the ‘low velocity impact’ defence.
In this week’s case (Pitcher v. Brown) the Plaintiff was involved in a 2004 collision and sued for damages.  The impact was a modest one.  The Court rejected much of the Plaintiff’s claim following credibility/reliability concerns in her testimony.  The Court was equally dismissive of the defence strategy of calling engineering evidence to discuss the modest forces of the collision.  The Court concluded, as have many previous judgments, that demonstrating forces are modest alone is no defence to an injury claim.  In rejecting the LVI aspect of the defence Mr. Justice Betton provided the following comments –

[106]     As to the forces involved and the probability of injuries resulting, the defence relies upon the opinion of two experts. Dr. Craig Good has a degree and Masters in Applied Science-Mechanical Engineering and a doctor in Philosophy in Mechanical Engineering. He opined that it is “highly unlikely that Ms. Pitcher sustained an acute Mild Traumatic Brain Injury at the time of the subject collision when her head contacted the head restraint.”

[107]     Gerald Sdoutz is a professional engineer who provided opinion evidence about the impact severity in the collision and compared it with activities such as sitting down in a low back office chair, coughing or sneezing or being jostled in a crowd.

[108]     While that expert evidence provides some insight I find its utility to be limited. It puts in perspective that the forces involved in the collision were modest. It does not preclude the conclusion that the plaintiff did receive injuries in this collision. In that regard I look to the expert medical evidence and the evidence of the participants in the collision. I will, in subsequent portions of this decision, address specifically my findings in relation to the plaintiff’s injuries.

"The Standard of Proof Does Not Change" For Subjective Soft Tissue Injuries

Sensible reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, confirming that the standard of proof does not change for a tort claim based on subjective soft tissue injuries.
In last week’s case (Rabiee v. Rendleman) the Plaintiff was involved in a 2008 rear end collision.  The Defendant admitted fault but disputed injury pointing in part to the fact that the collision was minor.  In accepting the Plaintiff sustained soft tissue injuries and assessing non-pecuniary damages at $40,000 Madam Justice Sharma provided the following comments about the standard of proof in low velocity impact prosecutions:
[62]         Given the findings of fact above, I am satisfied that the plaintiff has established on a balance of probabilities that the accident caused soft tissue injuries. The accident was clearly “a cause” of the soft tissue injuries…

[64]         The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock, [1981] B.C.J. No. 31 (B.C.S.C.) that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”

[65]         I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock, [1983] B.C.J. No. 1490 (B.C.C.A.) clarified:  “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”

[66]         The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors…

71]         Taking into account all of the cases and my conclusions about the evidence in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary damages.

BC Court of Appeal – Scientific Evidence Not Needed in LVI Injury Claims

Reasons for judgement were released today by the BC Court of Appeal (Pacheco v. Antunovich) overturning a trial judgement which dismissed an injury claim following a so-called low velocity impact.  The Court found the trial judge made palpable and overriding errors in his assessment of the evidence.  In reaching this conclusion the Court of Appeal provided the following comments:
[35]         As previously noted, the judge found the appellant’s claim of injuries arising from the accident not to be reasonable or credible in the absence of independent or scientific evidence of how the mechanics of such a minor collision could have caused the injuries claimed. With respect, in my view the judge erred in finding that the appellant only “thought” her car was pushed forward in the collision when she in fact said that it was pushed forward (although she did not know how far). He also misapprehended her evidence that the collision caused two black dents to her bumper by describing them as “two small scratches” (a description advanced by defence counsel). He did not consider or he overlooked the appellant’s evidence that at the time of the collision her hands were on the steering wheel and her right foot on the brake, and how that positioning of her body might be relevant to the mechanics of the collision and her subsequent complaints of lower back and right side gluteal pain. Most significantly, however, he appears to have ignored the opinions of each of the appellant’s doctors that her lower back and right side gluteal pain were caused by the collision, which the respondents did not counter by any evidence to the contrary…

[43]         The need to carefully examine any inconsistencies and contradictions in a plaintiff’s evidence, with the evidence as a whole, before rejecting that party’s evidence based on demeanor alone, was echoed in Jezdic. In that case, which also involved a minor collision, Sigurdson J. dismissed the action based on a negative assessment of the plaintiff’s credibility. That assessment, however, included identifying “significant inconsistencies” in the plaintiff’s evidence, both internally and with his findings of fact (para. 41), noting all the while that “there is no rule of law or physics that a person cannot be injured in a low speed collision” (para. 33).

[44]         In this case, the judge did not assess or find any inconsistencies or contradictions in the appellant’s evidence, either internally within her evidence or with other established facts. With respect, his findings of credibility seem to be driven, in large part, by his inference from the appellant’s demeanor at trial that she was exhibiting pain exaggeration behaviour and, also, from his erroneous findings of fact as noted above.

[45]         In the result, the appeal must be allowed and a new trial ordered.

$64,000 Non-Pecuniary Assessment Following "Low Velocity" Collision

Adding to this site’s archived judgments dealing with ‘low velocity’ collisions, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In today’s case (Park v. Abd El Malak) the Plaintiff was involved in 2010 rear end collision caused by the Defendant.  The impact was not severe but did cause the Plaintiff injuries.  The Defendant argued it was a low velocity impact and therefore the Plaintiff’s injuries must be from other causes.  In rejecting this defense and awarding $64,000 in non-pecuniary damages for the Plaintiff’s injuries Mr. Justice Davies provided the following reasons:

[73]         Counsel for the defendant has submitted that all aspects of Mr. Park’s ongoing back problems are related to his pre-existing disc problems that would have occurred in any event. He also submits that the low velocity of the collision supports that finding.

[74]         I do not agree.

[75]         The defendant’s submission ignores the overwhelming cumulative effect of the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that Mr. Park’s injuries were caused by the collision and that his pre-existing back conditions were asymptomatic at the time of the collision and were rendered symptomatic by the collision…

[95]         I reach that conclusion with specific reference to the following evidence which I accept:

1)    Dr. Kim’s prognosis that despite all medical measures undertaken, Mr. Park’s symptoms persist and have now persisted for more than five years and will continue to with perhaps some (but gradual) improvement.

2)    Dr. Heran’s prognosis and recommendations as recorded in his opinion of June 26, 2014, that:

The recommendations that Dr. Craig makes for management based on the fact that he does not believe that Mr. Park has reached maximal medical improvement in his primary medical legal report are somewhat conflictual as clearly Mr. Park has developed L4 radiculopathy into his right leg likely before and definitely after the assessment with Dr. Craig and this confounds any abilities to recover overall. The myofascial components of his pain definitely have improved. The optimistic approach to him being able to do all of his usual activities back in a setting where only intermittent exacerbations would be incurred is therefore not supported by the presence of the L4 radiculopathy either. Dr. Craig does appropriately note that there is potential for slightly increased risk of accelerated degenerative changes in his neck and back due to the injuries from this accident. This is more importantly for the lumbar spine where he already has prominent degenerative changes already resulting in narrowing of the space where the nerves pass through in a setting where he has already been symptomatic in such distribution.

In my opinion Mr. Park is now well over two to three years out from the motor vehicle accident which is the time one would expect him to be plateaued from his myofascial injuries. Your records support that he has reached a point where he has intermittent neck pain, albeit not a major concern by the time he saw me, as well as persistent low back pain, albeit much improved than when it first started following the motor vehicle accident. What I don’t know is whether the L4 radiculopathy i.e. the radiation into his right leg, will improve with time. This is possible, however, not probable, given the imaging abnormalities. Subsequent MRI scan has not yet been performed. A comparative MRI scan which I have already ordered, requesting this to be performed around December 2014, will be valuable for further delineation of true causation for the right sided L4 radiculopathy as it is likely to be from height loss, disc settling and osteophytes as opposed to a disc herniation, with the former not getting better with time. If it were to persist, then a recommendation for intraspinous device for decompression of the nerve root indirectly is what I would propose. I would not recommend an aggressive surgery with instrumentation or aggressive open surgery with laminectomy for decompression. For this reason I would like to see Mr. Park following his MRI scan of around December 2014.

At this point in time I feel that Mr. Park is limited from all moderate to heavier activities yet is able to participate in all of his usual daily activities of light to moderate nature. Assistance would be required for heavier lifting, repetitive activities requiring bending and twisting maneuvers. His recreational activities have also been affected and this is well outlined.

3)    Dr. Craig’s prognosis to which I earlier referred and quoted at para. 57 of these reasons.

4)    Mr. Park’s evidence which I accept, that he is now able to be less physically active and unable to enjoy outdoor activities that he used to enjoy, is burdened by headaches when trying to read historical treatises which he used to very much enjoy, and finds that he is more tired from the standing his work requires and also less able to do the heavier lifting that he previously did.

[96]         I do, however, find that Mr. Park’s pain and suffering and loss of enjoyment of life are less than that suffered by the plaintiffs in those cases in which the plaintiffs were awarded general damages of $100,000.

[97]         Although Mr. Park has suffered pain that is chronic, it does however, wax and wane. He is also still able to enjoy travel to Asia although of a more sedentary nature than before the collision. He is still also able to make the long drive from Valemount to Vancouver although with more frequent stops and discomfort. The sparse evidence of the need for future surgical or other invasive medical intervention is also insufficient to establish entitlement to compensation for such eventualities.

[98]         In all of the circumstances I find that an award of $80,000 would appropriately compensate Mr. Park for his past, present, and future pain and suffering and loss of enjoyment of life.

[99]         By application of the 20% reduction I have previously found to be necessary to compensate him only for the change from his “original” position that has been caused by the defendant’s negligence, I award Mr. Park $64,000 to compensate him for his non-pecuniary losses.