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.