Overstating Severity of Collision Leads to Claim Dismissal Following Low Velocity Impact

Update February 18, 2016 – the below case was overturned on appeal with a new trial being ordered with the Court of Appeal expressing concern that the trial judge failed “to offer any explanation of his reasons for rejecting important corrobative evidence“.
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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a personal injury claim following a minor collision.
In today’s case (Andraws v. Anslow) the Plaintiff was involved in modest rear end collision in 2011 which the Defendant took full responsibility for.  The Plaintiff went to hospital via ambulance following the incident and participated in some therapies thereafter.  The Plaintiff sought damages of over $65,000 but the claim was rejected in its entirety with the Court noting that the Plaintiff failed to meet her burden in proving the modest collision caused her injuries.  In reaching this decision the court was troubled with the plaintiff’s “overstatement” of the severity of the collision.  In dismissing the claim and ordering the Plaintiff to pay the Defendant’s costs Mr. Justice Funt provided the following reasons:

[8]             The collision occurred at very low speed.  The defendant’s car was behind the plaintiff’s van in a line leaving Guildford Mall.  The line was merging into available breaks in traffic so that egress onto 152nd Avenue could be made safely.

[9]             The plaintiff did not see the collision develop.  She only felt the impact of the defendant’s car.  She described the collision as a “hard hit” and that her chest hit the steering wheel.  The plaintiff testified her car was pushed forward but could not say how far forward.  The coffee in a cup-holder spilled.  The plaintiff’s friend, who was in the front passenger seat of the van at the time of the accident, did not testify…

13]         The defendant is an older gentleman.  He was an RAF pilot in World War II.  Age has treated him well.  He enjoys a clarity of expression and a quick mind.

[14]         As the defendant described the collision, he was behind the plaintiff as her van edged towards 152nd Avenue.  He did not see the van stop and his vehicle rolled into it.  The defendant estimated the speed of his car as “dribbling along” at approximately 2-3 kph, a “drifting speed”.  He acknowledged there was a “sudden bang” when the plaintiff’s van was bumped, not “hit”.  He felt little impact.  A Kleenex box resting on the rear seat of the defendant’s car remained in place, and did not fall to the floor upon impact.

[15]         The defendant suffered no injuries as a result of the accident. He initially thought there was no need to exchange information with the plaintiff because he could see no damage other than possible scuff marks on the van’s bumper…

[38]         The burden remains on the plaintiff to prove to the Court the nature and extent of his or her injuries and that these injuries were caused by the defendant’s negligence, whether the collision is minor or major.

[39]         The defendant’s description of the collision was consistent with the cosmetic damage to each vehicle and the overall traffic configuration at the time of the collision.  The Court finds that the collision involved only minor forces.  The plaintiff has overstated the severity of the collision.

[40]         A collision of minimal forces makes it more probable that there would not be serious injury.  As noted above, Dr. Parikh’s opinion was that the plaintiff was totally disabled from any type of employment requiring the continued use her upper and lower back muscles for almost a year.  In his deposition, he testified that the plaintiff would be “capable of some sort of sedentary-type job within six months of her injury, after she’d completed as session — extended session of physiotherapy”.  As noted above, based on questionnaires completed by the plaintiff, as of January of this year, Mr. Teh, the kinesiologist, described the then-current disability in the plaintiff’s upper body and neck as “severe”.

[41]         The Court finds that the plaintiff has not been sufficiently reliable to prove her claim on a balance of probabilities.  As described above, the Court finds that the plaintiff overstated the severity of the collision.  Without foundational reliability, the Court is not satisfied on a balance of probabilities that her complaints reflect any injury arising from the collision.  As the Supreme Court of Canada in F.H. also stated (at para. 46): “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.

[42]         Without sufficient reliable evidence, the Court finds that no injuries were occasioned by the accident.  The plaintiff has not discharged her burden of proof.

Low Velocity Impact Strategy Judicially Rejected

Adding to this site’s archived judicial commentary on low velocity impact claims, reasons for judgement were released this week addressing and dismissing evidence seeking to minimize an injury claim based on the severity of the force of impact.
In this week’s case (Dunne v. Sharma) the Plaintiff sued for damages as a result of two collisions.  She alleged both physical and psychological consequences following these collisions.  The Defendant argued that any injuries the collisions caused were relatively minor as the collisions were modest.  In support of the Defendant’s argument accident reconstruction evidence was introduced which discussed the forces of the collision.  In rejecting the Defendant’s argument Mr. Justice Williams provided the following reasons:
[90]         Dealing first with the low velocity and minimal material damage aspect, I note that the defendants have tendered a report prepared by an engineer with expertise in the field of accident reconstruction. The essence of his opinion is that in each of the subject collisions, the velocity change experience by the plaintiff’s vehicle was probably less than about 12 km. per hour. The photographs contained in his report also demonstrate that the damage done to the cars by the collision was quite modest.
[91]         I appreciate that to have to been the case and I accept that common sense might generally dictate that a minor collision would not be expected to result in significant injuries. However, there is simply no basis upon which I am able to extrapolate the information concerning the velocity of the collision to a conclusion that the plaintiff’s injuries must therefore necessarily be of a certain type and degree. As has been judicially observed in a multitude of cases, the court cannot conclude that because the impact of the collision was relatively minor, then any resulting injuries must necessarily be minor as well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, 38 A.C.W.S. (3d) 924 (S.C.):
Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.
The magnitude of the collision is one factor the court will take into account, but it will be considered in the totality of the evidence. Generally, its effect with respect to determination of resultant injuries will not be great.
 

Credibility Concerns Lead to Outright Rejection of Personal Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, outright rejecting a personal injury claim as a result of credibility concerns.
In today’s case (Fancy v. Gareau) the Plaintiff was involved in a 2008 rear end collision.  Fault was admitted.   At the time of the collision the Plaintiff was on a WCB claim.  She claimed the collision caused a neck injury and that this was not a pre-existing problem.  In the course of the trial this claim proved unreliable and the Court ultimately dismissed the claim.  In reaching this result Mr. Justice Parrett noted as follows:
[69]         Perhaps the most startling reversal in her evidence was the cross-examination of the plaintiff about a portion of Exhibit 8.
[70]         This document was a spreadsheet prepared by the plaintiff and her husband as a part of their submission to the Workers Compensation Board to help establish that she had suffered “an upper back injury”.  In item 11 on page 2 of the spreadsheet the plaintiff specifically refers to the August 5, 2008 Physiotherapy Initial Notification (Exhibit 10) referred to above.  The excerpt contained in item 11 specifically notes that the “Injury Recorded on Claim: Neck” and then records the following submission regarding the document:
Corroborating Documentation of stiff neck from workplace injury (July 8, 2008) – this injury is NOT from the MVA as suggested by CD in Item 32.
[71]         The last column of this spreadsheet is entitled “Proof of:” and is divided into two columns, the first of which is “Upper back/left arm injury”.
[72]         The plaintiff entered “Yes” in this column with respect to Item 11.
[73]         When confronted with this document the plaintiff conceded that when the Workers Compensation Board case manager said that the neck injury was not as a result of the workplace injury but from the motor vehicle accident she disagreed and said ‘no, I injured my neck in the workplace accident’.
[74]         When pressed on this point she advised the court that:
The upper back, to me, includes the neck.
[75]         This evidence was given without the faintest embarrassment or apparent realization that the previous day she had testified that:
When I say upper back I do not mean my neck.

[125]     This is a personal injury action in which the issue is causation.  Simply put the question amounts to this – Was the plaintiff injured or did she have existing injuries or conditions aggravated by the motor vehicle collision on September 30, 2008?
[126]     The evidence presented to the court by the plaintiff is devoid of medical evidence and opinion touching on the issue of causation.
[127]     The only expert opinion placed before the court is that of Dr. McKenzie who first saw the plaintiff some 28 months after the motor vehicle collision.  In providing Dr. McKenzie with the history he used as the foundation of his opinion the plaintiff misrepresented and altered the facts and withheld critical information about her physiotherapy treatments and pre-existing symptomology.
[128]     The effect of her actions destroyed any value of Dr. McKenzie’s opinion…
[139]     The plaintiff’s action is dismissed.
 

"Exaggerated" Injury Claim Dismissed by BC Supreme Court

Update March 10, 2015 – The below decision was overturned by the BC Court of Appeal which found that the trial judge made “palpable and overriding error” in the assessment of the evidence.  A new trial was ordered.
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Credibility plays a vital role when advancing a claim with subjective injuries.  Negative credibility findings can undermine such a claim as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pacheco v. Antunovich) the Plaintiff was involved in “a very minor” rear end collision in 2012.  The Court found that the Defendant was “travelling at a speed of no more than two kilometers per hour at the time of the collision“.   The Plaintiff alleged injury and sought over $100,000 in damages at trial.  The Court rejected the entirety of the claim and ordered the Plaintiff to pay the Defendant’s costs.  In reaching this decision the Court was critical of the Plaintiff’s credibility and provided the following reasons:
[10]         The credibility of the plaintiff is very important in a case like this where the foundation for most of the plaintiff’s complaints is subjective. Therefore, it is prudent for me to deal with the issue of credibility.
[11]         The plaintiff was cross-examined on her medical records for the period before the collision. It is clear from those records that the plaintiff attended her doctor on a very regular basis in the months and years preceding the collision. Although the plaintiff testified that she was active in sports before the collision, her medical records seem to indicate that she visited her doctor in relation to ongoing pain and repercussions she claimed she was still suffering from her previous injuries. In fact, one of these visits in which she complained of this type of pain occurred about a month before the collision.
[12]         Another result of the cross-examination of the plaintiff on her medical records was the fact that she previously complained of weight gain and hair loss in September 2010. This is exactly one of the claims she alleges in this action as a result of the collision.
[13]         Further, throughout the trial and at five or ten minute intervals, the plaintiff would stand up from her seat and continuously stretch so that I could “see” the pain she experiences when she sits in one position for a period of time…
[19]         I did not find the plaintiff to be a very credible witness at trial. Her testimony was not reasonable within the circumstances of the very minor “fender bender” in this case. I find that she had a strong penchant for gross exaggeration and, as such, I do not accept her evidence…
25]         I find that the plaintiff has failed to prove on a balance of probabilities that she suffered any injury as a result of the collision. The plaintiff’s action is therefore dismissed with costs.

$30,000 Non-Pecuniary Assessment For Two Year Soft Tissue Injury

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury of two year’s duration.
In this week’s case (Visona v. Stewart) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault.  The Court accepted that the collision, despite being relatively minor, caused soft tissue injuries which lasted for up to two years.  The Plaintiff’s most serious concern was chronic tailbone pain although the Court rejected the submission that this was caused by the collision.  In assessing non-pecuniary damages at $30,000 for the soft tissue injuries Mr. Justice Jenkins provided the following reasons:
[32]         Based on the statements above and Ms. Visona’s evidence at trial, her suffering and the effects of the soft tissue injuries likely lasted no longer than two years from the date of the accident. In making this determination, I am not taking into account the “tailbone” injury which Ms. Visona claims was caused by the November 23, 2009 accident. The evidence supports a finding that Ms. Visona continued suffering from her tailbone injury long after the soft-tissue injuries appear to have healed. I am considering the tailbone injury separately because on the evidence of the nature and severity of the accident, all of the medical practitioners’ evidence and Ms. Visona’s evidence, I find it unlikely that her tailbone injury was caused by the accident.,,
[38]         As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona’s marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.
[39]         Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual’s situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven’s decision in Carter v. Zhan,2012 BCSC 595, and Madam Justice Maisonville’s decision in Vela v. MacKenzie, 2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages of $35,000 and $27,000, respectively.
[40]         I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.

"Untruthful" Description of Collision Undermines Personal Injury Lawsuit

If an injured plaintiff inaccurately describes the forces of a collision to physicians that can work to undermine the foundation of subsequent medico-legal reports and strike at the foundation of a personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In this week’s case (Warren v. Morgan) the Plaintiff was involved in two collisions in 2008.  She sued for damages and proceeded to trial which took 22 days.  The Court found that the first collision caused “no damage” to the Plaintiff and dismissed the claim.  The second claim allegedly caused profound injury including long term problems stemming from both psychiatric and organic injuries.  The Court largely rejected the Plaintiff’s claim and dismissed most of the claimed damages.  In doing so Madam Justice Russell provided the following comments criticizing the Plaintiff’s evidence with respect the forces involved in the collision:
[476]     These findings do not determine the issue of causation. The law is well-established that causation and the extent of an injury will be decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC 1076 at paras. 44 – 45; Christoffersen v. Howarth, 2013 BCSC 144 at paras. 56 – 57. Even if the accident was minor, Ms. Warren may have suffered serious physical and psychological injury.
[477]     At the same time, Ms. Warren has put forward an untruthful version of the accident to her treating health care professionals, as evident in their description of the incident. For instance, Dr. Boyle’s report notes that she crashed into the car ahead of her as a result of Mr. Berretta’s vehicle hitting her from behind. This misstatement cannot be explained by the passage of time; it is a misrepresentation that affects the reliability of the medical evidence admitted in this case for the purpose of determining causation and damages…
[591]     On the evidence, I find the plaintiff has convinced herself that the accident occurred in a certain way and that she experienced certain symptoms. She has presented this story to her treating doctors who have relied upon the accuracy of her reported symptoms. These doctors have found support for their diagnoses in other medical reports, that similarly rely upon the accuracy of plaintiff’s reported symptoms. This evidence superficially seems reliable, but its foundation is fictitious.

The Death of the LVI Program?

I have it on good authority that ICBC’s Low Velocity Impact Program is being largely scrapped.  Instead of the conventional LVI denials for collisions with under $2,000 of vehicle damage, I am informed that ICBC will now only deny claims under the LVI policy in cases where vehicle damage is limited to “scuffs, scrapes or scratches“.  Anything beyond this minimal paint damage will be adjusted on overall merits.  I have not yet seen a written copy of this shift in policy but if I do I will be sure to share it here.
With this introduction out of the way, the latest judicial nail in the LVI coffin was released this week.  In this week’s case (Midgley v. Nguyen) the Plaintiff was involved in a 2004 collision.  He suffered various injuries and sued for damages. ICBC argued this was a Low Velocity Impact and that the plaintiff was not injured.  Madam Justice Dardi soundly rejected this argument finding the Plaintiff suffered from a torn labru in his right hip along with psychological injuries.  She assessed non-pecuniary damages at $110,000.  In dismissing the LVI Defence the Court provided the following critical comments:
[174]     The overarching submission of the defence was that “this was a nothing accident”. The tenor of the defence submission was that, since there was no damage to Mr. Midgley’s motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.
[175]     There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is to be determined on the basis of the evidentiary record at trial: see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.
[176]     As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr. Midgley’s body position at the time of impact – and the existence of his injuries.
[177]     On the totality of the evidence, I am persuaded that Mr. Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.

LVI Defence, Liability Denial and Language Barriers Create Sufficient Reason to Sue in Supreme Court

While the BC Supreme Court Rules generally deprive a Plaintiff of costs who bring an action to trial that could have been brought in small claims court the BC Court of Appeal clarified that having ‘sufficient reason’ to sue in the BC Supreme Court is not limited to quantum of damages alone.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering some such other factors.
In this week’s case (Bae v. Vasquez) the Plaintiff was injured in a 2010 rear-end collision.  The Plaintiff suffered relatively minor soft tissue injuries.  She sued in the BC Supreme Court and was awarded damages of just over $12,000.  ICBC argued she should not be awarded costs as the action could have been brought in small claims court.  Madam Justice Baker disagreed finding that ICBC’s initial denial of liability, LVI Defence and the Plaintiff’s language barriers were all reasons justifying bringing the action in the Supreme Court.  In awarding costs the Court provided the following reasons:
[69]         I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue.  I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.
[70]         In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.
[71]         Plaintiff’s counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim.  Plaintiff’s counsel has advised the Court that prior to the action being commenced, the defendant’s insurer had indicated:
…that due to the “minimal nature of the impact forces involved in the collision”…the Plaintiff had not sustained any “compensable injury”.
[72]         The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.
[73]         Plaintiff’s counsel submits that because the defendant was maintaining that the plaintiff’s negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court.  Counsel pointed out that at the plaintiff’s examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver’s licence at the time.
[74]         It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant’s counsel wrote to plaintiff’s counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff’s consent to transfer the action to that court.  Plaintiff’s counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer.  Defendant’s counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court.  No reply was received.
[75]         Ms. Bae testified at trial with the assistance of an interpreter.  She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her.  Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel.  Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation.  There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.
[76]         Taking all of these factors into account, I am of the view that there was sufficient reason for the plaintiff to bring her action in Supreme Court.  I award the plaintiff costs, the costs to be governed by Rule 15-1(15).

Low Velocity Impact – Not the Law but a Factor That Can Be Looked At

I’ve written many times about the fact there is no legal principle behind the so-called ‘low velocity impact’ defence which seeks to reject injury claims solely on the severity of vehicle damage.  The forces of impact, however, are a factor a Judge or Jury can look at when weighing all of the evidence in support of an injury claim.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was involved in a minor rear-end collision   Despite the collisions relatively minor forces the Plaintiff sustained soft tissue injury to her neck and back.  The Plaintiff also alleged that she suffered a right shoulder injury which caused long term difficulties in limitations.
The Court grappled with various potential causes of the shoulder injury and ultimately rejected the claim it was related to the collision.  In doing so one of the factor’s the Court looked at were the forces of impact. Madam Justice Fitzpatrick provided the following reasons addressing this evidence:
[206]     I will briefly address one aspect of the submissions from the defence regarding the low impact of the collision, namely, what is to be taken from that fact.
[207]     Evidence of the damage caused and the impact generally can be one of many factors considered by the court in determining what injuries, if any, were caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054 (P.C.) at paras. 30-33.
[208]     In Miller v. Darwel, 2005 BCSC 759, the court stated:
[9]        On appeal, the claimant argues that the trial judge erred in considering the force of the impact of the collision on the issue of liability. In support of this position the claimant relies upon the case of Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray, J. (as he then was) said at para. 4:
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 not 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.
[10]      As other judges who have considered this passage have already said, these words should not be taken to mean that the extent of damage in a collision is irrelevant to causation. It is some evidence of impact, which is not logically unrelated to injury.
[11]      I agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996] B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:
Such evidence is therefore relevant with respect to what injuries resulted from the impact and to the issue of the credibility of the plaintiff who asserts such injuries, by reason of the fact that such injuries often do not have objective symptoms. Such evidence may, depending upon the extent of the property damage, either contradict or corroborate evidence of personal injury.
[209]     More recently, Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that “[t]he Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.”
[210]     I agree that this was a low impact collision, as discussed earlier in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’ claims of injury, particularly as they relate to her right shoulder.

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:
[54]         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…
[58]         In order to accept the defendant’s 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’s evidence was shown on cross examination to have been exaggerated in a few minor respects.
[59]         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’s body was subjected to during the collision or how the shock absorbers built into the vehicles’ 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.
[60]         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’s vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal. 
[61]         Causation has been established by the plaintiff.

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ERIK
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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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