BC Supreme Court Takes Hard Stance Against LVI Defence

I have blogged several times with respect to ICBC’s LVI (Low Velocity Impact) Defence with a view towards educating BC vehcicle collision victims that ICBC’s LVI Policy is not the law, rather it is an internal policy geared towards saving ICBC money. 
ICBC’s LVI policy, when used in the defence of an injury claim, is often rejected by BC courts.  The LVI policy has one fatal flaw, assuming that the amount of vehicle damage (or lack therof) is related to the severity or possibility of sustaining injury. 
This week reasons for judgement were published in which the ICBC defence lawyer ran the LVI Defence.  Mr. Justice Macaulay rejected this defence and in doing so used the best language I have yet come across as an ICBC claims lawyer in explaining the flaw in the LVI Program’s logic.  At Paragraph’s 3-4 the court summaries the evidence led by the ICBC defence lawyer as follows:

[3]                According to Jiang, a line of traffic was stopped waiting for the left-turn signal.  When the light changed, the line started to move.  Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it.  He said the vehicles “barely touched” and that the impact was “very light, just a little boom”.

[4]                The evidence of the ICBC estimator confirms that the impact was relatively minimal.  The Lubick vehicle sustained cosmetic damage to the rear bumper.

Mr. Justice Macaulay then goes on to dismiss the logic behind the LVI policy in very strong words.  At paragraphs 5-6 of the judgement the court takes the following very harsh view of the so called LVI Defence:

[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.

[6]                I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

After hearing evidence from the Plaintiff, the Plaintiff’s doctor and physiotherapists, the court concluded that the Plaintiff suffered a minor soft tissue neck injury with associated headaches and a moderate low back soft tissue injury.  The court found that the injuries were largely recovered by the time of trial and awarded non-pecuniary (pain and suffering) damages for $18,000. 
This judgement shows once again, in no uncertain terms, that medical evidence is key in determining whether or not one sustained injury in an LVI crash, not the evidence of an ICBC vehicle estimator. If you are the victim of a BC auto collision, have been injured, and received the standard ICBC LVI claim rejection letter, this case is certainly worth having handy if you wish to take your claim to court.

Do you have questions about an LVI claim denial?  If so feel free to contact the author of this article for a no-obligation consultation.

$18,000 Awarded for 2.5 Year Whiplash Injury With Headaches

In brief reasons for judgement released today by the BC Supreme Court, Madam Justice Morrison awarded a 33 year old Plaintiff $18,000 for pain and suffering (non-pecunairy damages) for injuries as a result of a 2005 motor vehicle accident.
The Plaintiff’s vehicle was rear-ended in Delta, BC in August, 2005. There was relatively little vehicle damage.
The Defendant’s lawyer admitted fault for the accident. The Defence ran what can be called ICBC’s Low Velocity Impact Defence, that is the defence lawyer led evidence that this was a ‘low impact’ collision with little damage to the vehicles. The Defence lawyer suggested that an appropriate pain and suffering award was $3,000.
The court made a positive finding with respect to the Plaintiff’s credibility. The court qualified the Plaintiff’s massage therapist as being capable of giving expert evidence with respect to massage therapy.
The court accepted that the Plaintiff suffered from pain and discomfort until 2007 when the soft-tissue injuries healed. In short, the Plaintiff suffered from soft tissue injuries affecting her neck and shoulders. The acute phase of injury lasted several months and gradually improved by the time of trial. The court accepted that the Plaintiff was fully recovered by the time of trial.
The Plaintiff had no lost wages as a result of the accident. $18,000 was awarded for pain and suffering for these injuries.
This case is worth a quick read as it is a great example of an LVI claim going to trial, having all the evidence heard in two days, and receiving timely reasons for judgement. Counsel for the Plaintiff did a great job getting this matter tried and having the client compensated for an amount outside of ICBC’s soft tissue injury settlement guidelines and outside of ICBC’s LVI policy.
Paragraph 37 of Madam Justice Morrison’s reasons for judgement was the highlight for me where she dismissed the LVI defence by stating as follows:
The motor vehicle accident was a minor one, with minor damage to her vehicle, but as Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) reminds us, a minor motor vehicle accident does not necessarily mean minor injuries. In Boag v. Berna, 2003 BCSC 779, Mr. Justice Williamson reflected at paragraph 12, “That a piece of steel is not dented does not mean that the human occupant is not injured.”
Cases such as these are certainly key ammunition should you wish to take an LVI case to trial.  If you have questions about this case or potential settlement of a similar ICBC claim feel free to click here to contact the author of this article.

$30,000 Pain and Suffering Awarded for Mild/Moderate Soft Tissue Injuries

In a judgement released today by BC Supreme Court, Madame Justice MacKenzie awarded a total of $30,900 plus wage loss in compensation as a result of a September, 2005 rear-end accident which occurred in Langley, BC.
The Plaintiff was a 55 year old woman. Prior to the accident she suffered from back pain, particularly she had osteoarthritic changes affecting all of her lumbar discs.
ICBC, on behalf of the Defendant, called evidence trying to paint the picture of a minor accident. ICBC called vehicle estimators who gave evidence that the vehicles basically sustained minimal damage. The purpose of this is to cast doubt on the ability of a minor accident to cause injury. The theory is basically that if the vehicle damage is not significant the injuries must not be significant. This tactic is often used by ICBC defence lawyers as a result of ICBC’s Low Velocity Impact (LVI) policy.
After hearing all the evidence the court found that the Plaintiff’s pre-existing condition did not impair her previous activities, that the accident caused mild to moderate soft tissue injuries, that these injuries have resolved somewhat by the time of trial and that there was no evidence of a minor permanent partial disability as a result of her accident related injuries. In other words, she should get better.
The court was not persuaded that a substantial possibility existed that the injuries would result in a diminished earning capacity. The court concluded that “In my opinion, with exercise and motivation, the Plaintiff will return to her condition before the accident”. In the end the court awarded $30,000 for non-pecuniary damages (Pain and Suffering), $400 for special damages (out of pocket accident related expenses), compensation for lost past income, and $500 for future care to permit the Plaintiff to pay for a 6 month gym membership with some supervision with a personal trainer.

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If you would like further information or require assistance, please get in touch.

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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