In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
 I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:
a. non-pecuniary damages: $40,000;
b. past loss of income and employment insurance benefits: $9,187.60;
c. loss of future earning capacity: $10,000;
d. special damages: $586.43;
e. pre-judgment interest.
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:
 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”.
 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:
 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,  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.
 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.
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.
In reasons for judgement released today, Madam Justice Morrison awarded a total of $550,828 in compensation for an August, 2004 motor vehicle collision.
The Plaintiff was a 45 year old senior commercial lines insurance underwriter. She was injured in a rear-end collision. As in most ICBC rear-end collisions, the defence lawyer admitted fault on behalf of the defendant leaving only quantum of damages (value of the claim) at issue.
A neurosurgeon who testified on behalf of the Plaintiff was found to give ‘compelling’ evidence. In summarizing the Plaintiff’s injuries the neurosurgon stated as follows
“My diagnosis is soft tissue injuries to the lumbar spine, referable to the motor vehicle accident in question, traumatic left L3-4 disc herniation causing left L4 nerve root pain and contributing to low back pain. In my opinion, it is also possible that the motor vehicle accident may have negatively impacted on the eventual outcome from the right L5-S1 disc herniation. The preoperative CT scan did show a focal disc herniation at the right L5-S1 level. This was confirmed on the post motor vehicle accident MRI scan. It is conceivable that the force that was sustained during the motor vehicle accident could have further damaged the compressed right S1 nerve root. In other words, were it not for the accident, her outcome from the right L5-S1 discectomy may have been better“
Commenting on the vocational impact of the injuries the Plaintiff’s neurosurgeon stated that:
“It is my opinion that (the Plaintiff) will be left with permanent back pain. This will result in some limitation of her vocational potential, especially as it relates to jobs that require a lot of sitting, repetitive twisting or turning of the lumbar spine, or lifting.“
The trial judge reached a favourable conclusion regarding the Plaintiff’s claim stating that:
“On causation, I am satisfied, on a balance of probabilities, that the motor vehicle accident of August 8, 2004, more likely than not, was the cause, or contributed to the injuries of the plaintiff. No other conclusion makes sense. The chronic pain would not have occurred except for that accident. I conclude, on a balance of probabilities, that the right-sided pain would not have recurred, but for that accident, and that the left-sided pain was due to the accident, without question“
After accepting virtually all of the Plaintiff’s evidence Madam Justice Morrison awarded damages as follows:
Non Pecuniary Damages (pain and suffering): $100,000
Special Damages: $7,828
Past Income Loss: $73,000
Loss of income earning capacity: $200,000
Cost of Future Care: $170,000
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.
In lenghty reasons for judgement released today, Mr. Justice Metzger found that injuries sustained in 3 seperate motor vehicle collisions had little impact on the Plaintiff’s functioning having regard to her MS related difficulties.
The only issue at trial was the value of the Plaintiff;s damages, fault for the accidents was admitted by the various defendants. The Plaintiff was diagnosed with MS about 5 months after the first of these 3 car accidents.
The Plaintiff sought a total of $223,550 in damages as a result of the collisions. The Plaintiff did not allege that the collisions played a role in the causation or aggravation of MS, rather that the impact of the accident related injuries on her functioning having regard to her MS was significant.
After over 3 weeks of evidence the trial judge concluded that the collisions caused soft tissue injuries (also referred to as connective tissue injuries) and that these were not particulalry significant.
Addressing the first collision the court concluded as follows:
The evidence is that the plaintiff’s injuries from accident #1 healed in their natural course and their effects were eventually overwhelmed or subsumed by the plaintiff’s unrelated progressive MS symptoms and disability. I am satisfied that the plaintiff’s pain and suffering decreased over a five-month period, ending in August 2003.
The plaintiff did not adduce evidence of a compounding or synergistic effect between her MS and her accident related soft tissue injuries.
On a review of the usual contradictory cases presented by opposing parties, I am satisfied the plaintiff is entitled to $8,500 in non-pecuniary damages for accident #1
Addressing the second collision the court found that
I find that the maximum duration the soft tissue injuries could be reasonably attributed to the motor vehicle accident of January 25, 2005 is from that date until May 3, 2006, when the MS relapse overwhelmed all other concerns. After that point, even if there were residual symptoms, their significance was “miniscule” or unrelated and not attributable to the negligence of the defendant.
From April 1, 2005 to May 3, 2006, the plaintiff’s function was quite high as she was able to maintain a satisfactory level of performance at Royal Roads University. As the plaintiff’s friend Tiffany Young testified, the plaintiff was able to meet with her for coffee, to play scrabble and go on walks, even though she had ongoing low back or other soft tissue injury symptoms. Other friends confirmed Ms. Jacobs’ attendance at dinners, movies and concerts.
It is not clear how many of the plaintiff’s MS symptoms were confused with the soft tissue injury symptoms. The lay witnesses were not in a position to distinguish between the pre-existing symptoms and those that came after accident #2. None of the lay witnesses suggested that the plaintiff did not have an energetic and high degree of function at least until the May 3, 2006 MS relapse. Each described what could reasonably be expected to accompany mild, nagging soft tissue injuries. The plaintiff coped despite these nagging and disruptive symptoms.
Having considered the collection of competing authorities with respect to appropriate non-pecuniary damages, I am satisfied the plaintiff is entitled to $23,500 as a result of the January 25, 2005 collision.
Lastly, the court found that there was “no objective evidence of injury” as a result of the third collision. THe court awarded $1,500 for pain and suffering as a result of that collision.
The Plaintiff’s total award was $36,116. Addressing the central issue in the case the court found that
There is no evidence of a compounding or synergistic effect between the accidents and the MS beyond the temporary and minor reference made by Dr. Devonshire while the plaintiff was undergoing a period of chemotherapy. The plaintiff remained employed and active at all material times until the disabling MS relapse.
Damages are therefore segregated on the basis of three separate accidents with no overlapping injuries and no interplay between the MS and the motor vehicle accidents.
Do you have questions about this case or a similar ICBC case that you would like to discuss with an ICBC claims lawyer? If so feel free to contact the author.
In a judgement released today by Madam Justice Humphries, a total of $58,000 was awarded to a 37 year old plaintiff as a result of a 2004 motor vehicle accident in Vancouver, BC.
The Plaintiff suffered soft tissue injuries in her neck, shoulder and low back. The accident also caused depression which was, according to the court, at least as debilitating as the physical injuries. The court found that the physical and psychological injuries were inter-connected.
The Plaintiff did suffer from pre-existing injuries in all of the above areas as a result of a 1996 motor vehicle accident. Evidence was presented that she was largely recovered from her pre-existing soft tissue injuries and depression by the time of the 2004 accident.
The court summarized her injuries as follows:
“From all the medical reports and from her own evidence, (the Plaintiff) appears to have recovered from the physical effects of this accident by late 2005 or early 2006 in the sense that she had ceased experiencing daily and ongoing pain. However, she continues to have and can expect to have bouts of pain depending on her activities. This is somewhat similar to the same state she was in prior to the accident, when she could work long hours, attending physiotherapy once in awhile if she was experiencing discomfort caused by her job. However, I accept that the effects of over-exertion and work-related activities since the second accident are more limiting than they were just prior to it “
In the end the court awarded $45,000 for pain and suffering (non-pecuniary damages), $3,000 for past wage loss and $10,000 for loss of earning capacity.
If you have an ICBC claim and have suffered from pre-existing injuries that were re-injured or aggravated by a subsequent car accident this case is worth reading to see some of the factors courts consider in these circumstances.
Also of interest is the courts reasoning in awarding some money for past wage loss despite the “flimsy” evidence that was advanced in support of an income loss claim. The Plaintiff was a self-employed photographer and there was no hard evidence of lost income. The court, at paragraph 40, held as follows:
It is only common sense that a self-employed person whose work depends on dealing with the public, persuading people to hire her, and being able to carry heavy cameras and position herself quickly in order to take pictures must be able to rely on physical agility and a pleasant personality in order to work to her full capacity. I accept that (the Plaintiff) was putting in many hours building her contacts and working on various facets of her business just prior to the accident, and due to her temporary physical limitations and some periods of depression, she was able to work less after the accident for a period of time. However, the amount of the loss is not amenable to a calculation, and many of the hours she put in were not necessarily hours for which she would be able to bill a client. As well, her earnings in the years prior to the accident were very low; in fact, she made more in 2004 than she did in 2002 and 2003. I assess an amount of $3,000 for past wage loss based on the plaintiff’s evidence of the restrictions she faced in carrying on with her existing business and the delay in her plans to expand her baby/pet photography.
If you are having difficulty agreeing to settlement of an ICBC claim because of pre-existing injuries or because of a disputed claim for past-loss of income from a self-employed business this case is worth a read to see how our courts sometimes deal with these issues.
Do you have any questions about this case? If so feel free to contact the author.
Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenence company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inetible accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.
In reasons for judgement released today from a Rule 66 “fast-track” trial, Mr. Justice Masuhara awarded a Plaintiff a total of $27,427.67 in compensation as a result of a September, 2004 rear-end accident which occurred in Coquitlam, BC.
The Plaintiff, a 33 year old female at the time of the accident, suffered soft tissue injuries including headaches, dizziness, nausea, sleep disturbance, and various soft tissue injuries.
The majority of the Plaintiff’s pain resolved by the time of trial with the exception of pain in her shoulder girdle and mid back.
The Plaintiff’s family physician testified that she suffered from “soft tissue injuries to her neck and upper back as a result of the accident.” Treatments included trigger-point injections to the Plaintiff’s right shoulder blade muscles.
A physiatrist also gave expert opinion evidence that the accident caused neck injuries that had resolved and further had caused “injuries to her right posterior shoulder girdle region and mid back”. He expected the Plaintiff to make a good or very good recovery but his prognosis of a complete resolution was guarded.
The ICBC lawyer defending the case called an orthopaedic surgeon who had examined the Plaintiff on behalf of the defence. He testified that the Plainitff “suffered a mild to moderate soft tissue injury to her neck and upper back areas“, that he “would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the accident ” and that the “ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the accident“.
The court accepted the evidence of the Plaintiff’s physicians and found that the Plaintiff’s “persisting symptoms in the area of her right shoulder blade are as result of the accident”.
Damages were awarded as follows:
1. Non-pecuniary (pain and suffering): $25,000
2. Past Wage Loss: $974.67
3. Special Damages (out of pocket expenses) $1,453
Mr. Justice Masuhara deals with some common arguments often advanced by ICBC lawyers defending these types of claims including attacks on the Plaintiff’s credibility. His findings were favourable to the Plaintiff and a quick read of this judgement reveals some of the accusations Plaintiff’s often face whem advancing ICBC claims.
ICBC tells you you are at fault and you disagree. What do you do? You gather as much information as possible in support of your claim.
One of the main sources of information to examine is the BC Motor Vehicle Traffic Accident Police Investigation Report (the “Report”). Assuming the police attended the accident scene a copy of this report should have been provided to all motorists involved.
These reports often contain valuable information such as the names of all involved, the exact location of the accident, the names of witnesses and if any charges were laid. If charges were laid, the section of the Motor Vehicle Act that was allegedly violated is often cited in the report. It is a good idea to look up the exact section cited to see what the police allege against the other motorist.
Other information contained the report is coded and most ICBC lawyers know how to intepret this. I thought I would highlight some of the more important codes to share this useful information with my readers.
On the right hand side of the the Report are typed numbers. Assuming you were involved in a two vehicle collision fields 31-33A relate to the first motorist mentioned in the report and fields 34-36A relate to the second motorist mentioned in the report.
The police then fill in these fields with codes for all the “contributing factors” to the collision. Here is what some of these codes mean:
16 = extreme fatigue
19 = fell asleep
22 = illness
23 = Sudden Loss of Consciousness
26 = Pre-existing physical disability
80 = Ability impaired by Alcohol
81 = Alcohol suspected
82 = Ability impaired by drugs
83 = Drugs Suspected
84 = Ability impaired by medication
85 = Driver inatentive
86 = Driver internal / external distraction
87 = Deceased prior to colliison
11 = Backing unsafley
12 = Cutting in
17 = Failing to Signal
18 = Failing to yield the right of way
20 = Following too closely
21 = Improper Passing
24 = Driving on wrong side of road
25 = Pedestrian error / confusion
29 = Ignoring traffic control device
30 = Improper turning
32 = Ignoring officer / flagman / guard
33 = Avoiding vehicle / pedestrian / cycle
34 = Use of Communication / video equipment
35 = Exceeding speed limit
36 = Excessive speed over 40 KH Hour
37 = Driving too fast for conditions
38 = failure to secure stopped vehicle
39 = Driver error / confusion
In additon to the above, the police can code in various factors for “Environmental Conditions” or “other” conditions that contributed the the accident.
I should note that police officers who fill out these reports rarely witnessed the collision themselves and often their allegations of what happened are inadmissible hearsay evidence. It is important to track down all witnesses who can verify these allegations so that there is a source to provide admissible evidence should your ICBC claim ever go to trial.
These reports are a valuable source of information when advancing ICBC claims and it is important for you or your ICBC lawyer to properly interpret these reports to properly advance an ICBC claim.
If you have any questions about your ICBC claim or some of the codes contained in a BC Motor Vehicle Traffic Accident Police Investigation Report feel free to contact the author for help.