Skip to main content

ICBC Injury Claims, the Low Velocity Impact Program, and Human Rights in BC

Interesting reasons for judgement were released today by the BC Supreme Court dealing with ICBC’s Low Velocity Impact Program (LVI Program) and Human Rights complaints.
The respondent was involved in a motor vehicle collision 2004.  This collision fell into ICBC’s LVI program and they defended the claim of the Plaintiff in accordance with that LVI program that ICBC had in place at the time.  Mr. Justice Wilson, summarized the program as follows:

[5]                On 12 March 2004, Mr. Yuan was involved in a road traffic incident.  A vehicle driven by another motorist collided with the rear end of Mr. Yuan’s vehicle while Mr. Yuan was stopped at a red light.  The Insurance Corporation of British Columbia is the liability carrier for the other motorist.

[6]                It appears to be common ground that, in addition to a contractual duty the Corporation had to its insured other motorist, to adjust this claim, there was a statutory duty the Corporation owed to Mr. Yuan to adjust the claim.  Mr. Yuan did make a claim for personal injuries he alleged he received as a result of the incident.  The Corporation, therefore, commenced its adjustment of Mr. Yuan’s claim.

[7]                At all material times, the Corporation had a policy, among others, based upon an analysis of the physical forces generated by the collision of motor vehicles.  The Corporation determined that in the ordinary course of events, a collision which resulted from a deceleration of less than eight kilometres per hour would not cause damage or injury to human tissue.  That was a rebuttable presumption.  But if a collision was determined by the Corporation to involve what is called a “low velocity impact” phenomena, then it was adjusted according to, among other things, an expedited procedure.

[8]                In this case, the Corporation did determine that the collision involved a low velocity impact between the two motorcars.  Accordingly, Mr. Yuan’s claim was assigned to the procedures and practices applicable for low velocity impact claims.  It is a part of the policies and practices that once the matter is precipitated into this low velocity impact procedure, that the adjuster go about determining whether or not there is information or evidence that will rebut the presumption.  That is to say, could the injury complained of be plausibly caused by the collision.

[9]                In this case, the Corporation determined that there was no information which rebutted the presumption at the time of the investigation and on 4 May 2004, the Corporation’s representative informed Mr. Yuan by letter that the Corporation would not consider any payments with respect to his claim against its insured for injuries arising from the incident.

The Respondent brought a human rights complaint alleging that the LVI program constituted ‘discriminatory practice‘.
ICBC brought a motion to dismiss the human rights complaint on the basis that the complaint was filed out of time and that ‘the complaint had no reasonable prospect for success‘.
The Human Rights Tribunal dismissed ICBC’s application.  ICBC appealed to the BC Supreme Court.  Mr. Justice Wilson agreed with ICBC and concluded that the Respondent’s application had no reasonable prospect of success.  His key findings were made at 46-52 which I reproduce below:

[46]            As the tribunal said in Ingram, there would have to be some allegation that the complainant “has been discriminated against on the basis of disability in order for a potentially valid human rights complaint to exist.  In other words, a complainant must allege facts that, if proven, would establish that they have been in some way adversely affected by reason of their disability.”  The member did not do that analysis.  I do.  There is no evidence that Mr. Yuan had his claim adjusted under the low velocity impact guidelines because he was physically or mentally disabled.  Indeed, the member found that any information or evidence with respect to his then existing state of health was not relevant to his considerations.

[47]            Second, the information before me, which was the same as the information before the member, is that Mr. Yuan was placed into the low velocity impact adjustment guidelines because the Corporation determined that the collision was a low velocity impact type.  It had nothing to do with any physical or mental characteristic of Mr. Yuan.

[48]            Third, there is no evidence of specifically how this particular method of adjusting a claim adversely affects Mr. Yuan.  The evidence is clear.  The complaint was received.  The determination was made that it was a low velocity impact.  Inquiries were made into the nature of the injury complained of, and a determination was made that it was implausible that this kind of a collision would cause the injuries complained of.  It was simply a matter of causation.  Based on the analysis the Corporation had done, it made a rebuttal presumption that there probably would not be injury to human tissue in the ordinary course of events, but if there was evidence to rebut the presumption, it was open to the complainant to bring that evidence forward.  Which Mr. Yuan eventually did do.

[49]            This complainant, Mr. Yuan, will not be able to establish that this Corporation put him into the low velocity impact adjustment process on the basis of his physical or mental disability or on the basis that it perceived him to be not disabled.  Therefore, I conclude that there is no reasonable prospect that his complaint against the Corporation will succeed under s. 27(1)(c) of theHuman Rights Code.

[50]            What the member did, however, as I say, was to set up a straw man.  What he said was, Mr. Yuan is treated differently because the Corporation perceives that he is not, or is less likely to be, injured or disabled.  So what attracts s. 8, according to the member, is not that there is discrimination against Mr. Yuan because of physical or mental disability but, rather, Mr. Yuan is discriminated against because the Corporation perceives him to not be physically or mentally disabled.

[51]            I agree with Ms. Westmacott.  That is to tip the analysis on its head.  To accept that notion seems to me to pound another nail into the coffin of common sense.

[52]            Those are my reasons.

I don’t write this post to support ICBC’s LVI program in any way.  I strive to have this blog comment on all ICBC cases of interest whether or not the results are pro Plaintiff or pro ICBC.  In my opinion the LVI program is designed to minimize claims costs and has little connection to whether or not injuries occur in a collision.  
Our courts deal with ICBC LVI claims frequently and the LVI archives of this website provide a good glimpse into how BC courts deal with LVI tort claims.  Nonetheless, this is an interesting judgement dealing with the unique allegation that the LVI program is somehow discriminatory. 

Small Claims Court Awards $10,000 for 4 month Soft Tissue Injury ICBC Claim

 (Image created by and used with permission of High Impact)
I usually focus my ICBC case law reports on cases from the BC Supreme Court and BC Court of Appeal but reasons for judgement were recently released from the Provincial Court of BC (commonly referred to as Small Claims Court) which caught my eye.
The Plaintiff was involved in a rear-end crash in May 2005.  From the judgement it appears to me to be a claim that fit ICBC’s Low Velocity Impact criteria (LVI) where ICBC takes the position that no compensable tort claim exists. 
The Plaintiff’s vehicle sustained little damage.  The evidence presented by the Plaintiff, her husband and her doctor was ‘fairly consistent’ and the court accepted that the Plaintiff suffered a ‘whiplash injury’ to her neck and back.
The court made the following findings “I accept that there is a four month injury from start to finish with approximately two months off work.  On those facts, it is my standard view and backed up by a number of cases, which oddly enough comes in directly between what the claimant puts forward way up at the upper end and what the defendant puts forward way down at the lower end, my view of this has been throughout coming towards the figure of $10,000 and that is the figure that I do award“.
The Plaintiff was also awarded her lost wages and special damages (out of pocket accident related expenses).
This judgement was only 3 pages long which is unusual for an ICBC personal injury case and makes for very easy reading.  I can’t find this judgment on the BC Provincial Court website but will post a link to the judgement if it becomes published.  This case shows how well suited the Provincial Court can be in some circumstances in dealing with ICBC injury claims involving minimal injuries which resolve quickly.

Loss of Vehicle Control due to Medical Issues and ICBC Claims

In my years of practice as an ICBC Injury Claims lawyer I have seen my share of unique cases.
One type of case that I have always found interesting and challenging are those dealing with the issue of fault when someone becomes ill behind the wheel and as a result is involved in a motor vehicle collision.
What if a driver loses control of a vehicle due to a heart attack and injures others?  What if the driver has a stroke or a seizure?  What if a driver blacks out due to a medical condition and injures others?  Can the innocent victims make an ICBC tort claim for pain and suffering in these circumstances?  The answer is it depends.
The ability to make a tort claim in negligence for pain and suffering revolves around the issue of fault.  If someone loses control of their vehicle due to a medical condition they may not be at fault for the collision.  The issue is whether the driver who lost control knew or should have known that he/she was at risk for losing control of their vehicle.  If a driver has every reason to believe he/she is medically fit when getting behind the wheel and then suffers an unexpected medical event which leads to a car accident they may not be at fault.  This can be contrasted where someone forgets to take prescription medication which exposes them to the risk of seizure and then ends up in a car accident.  In the latter case liability is much more likely.  The challenging cases lie in the big grey area in between these 2 hypothetical scenarios.
There are many details that need to be explored when determining whether a driver who injures others due to a medical condition is at fault.  When ICBC tort claims are denied in such circumstances it is important to explore the drivers fitness to drive and get to the bottom of what he/she knew or should have known about their fitness prior to getting behind the wheel.

$30,000 Non-Pecuniary Damages awarded in Minimal Damage Collision

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $40,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff was stopped at a stop sign in Surrey, BC when her vehicle was rear-ended by the Defendant.  The issue of fault was not disputed.  What was disputed was whether the Plaintiff was injured in this crash and if so what the amount of her damages ought to be.
This case seems to be one that fit ICBC’s Low Velocity Impact (LVI) criteria.  The vehicles involved had very little damage.  Evidence was called from an insurance estimator who testified that there was nothing more than cosmetic damage to the vehicle and the repair estimate was slightly more than $500.  It is a frequent strategy of ICBC defence lawyers to focus on the amount of vehicle damage in LVI cases and this strategy appears to have been employed in this trial.
Despite the LVI-nature of this crash the Plaintiff satisfied the court she sustained injuries.  The Court was impressed with the Plaintiff and made the following finding:
[43]            I find that Ms. Orrell is an honest witness and accept her evidence of the event and the injuries that she sustained.  I am satisfied that she was injured in the collision, and that, as a consequence, she experienced pain and discomfort and disruption to her usual activities.  Those have not fully resolved at the time of trial.
Mr. Justice Williams summarized the injuries as follows in concluding that $30,000 was fair for the Plaintiff’s pain and suffering (non-pecuniary damages) 
[51]             The accident and the resultant injuries caused a reasonably significant measure of pain, suffering and loss of enjoyment of life for Ms. Orrell following the event.  Considering both her evidence and the first report of Dr. Miki, that effect was most pronounced for a period of approximately six months, but continued, albeit in a less debilitating way, up to the point of trial.  It has impacted on her participation in many endeavours, including being physically active in such pastimes as running, going to the gym, gardening, ordinary household tasks and, importantly, being as active with her son as she otherwise would have been. As I have indicated earlier, there are however other factors that must be taken into account, including her pre-accident status and her pregnancy in 2006.  Both of those contributed to her discomfort too.
Cases like this one show time and time again that the extent of vehicle damage does not determine what a person’s tortious injuries are worth in British Columbia, rather medical evidence is key in valuing ICBC injury tort claims.

Motorcyclist Found Liable for "Negligent Acceleration"

Reasons for judgement were released today by the BC Supreme Court finding a motorcyclist liable for injuries to his passenger.
The Plaintiff was a passenger on the Defendants motorcycle.  He turned onto a highway in British Columbia and changed gears.  This produced a ‘burst of accelaration’ and at this time the Plaintiff was thrown off the back of the motorcycle.
The Plaintiff sustained road rash types of injuries ‘including loss of skin to various parts of her body, soft tissue injuries, various extensions and strain injuries, a lingering loss of sensation in her fingertips, and a reoccurrence of previously suffered depression‘.
The court found that the Defendant driver was liable in negligence for these injuries.   The courts key findings were made at paragraphs 23-24 which I reproduce below:

[23]            I find that Mr. James was an experienced motorcyclist.  I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James.  As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears.  I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle.  I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.

[24]            I find that Mr. James did operate the motorcycle negligently that day.  I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect.  I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur.

The court assessed the Plaintiff’s non-pecuniary damages (pain and suffering) for her various injuries at $40,000.
This is a useful case for anyone advancing an ICBC injury tort claim who was injured even though no actual collision occurred.  This case demonstrates that a collision is not a pre-requisite for succeeding in a tort claim in British Columbia.  

ICBC Claims and Litigation Privilege

Reasons for judgement were released today by the BC Supreme Court ordering the production of certain documents that the defendants claimed were exempt from disclosure due to ‘litigation privilege.’
The Plaintiff suffered severe head injuries when struck as a pedestrian in 2006.   In the course of her lawsuit her lawyer served the defendants with a Demand for Discovery of Documents.  In exchanging their List of Documents the Defendants claimed ‘litigation privilege’ over some of the documents.  The Plaintiff brought motion to compel production of these documents and largely succeeded with the court holding that:
the defendants failed to provide sufficient information to enable the plaintiff to assess whether the defendants were correctly claiming litigation privilege over each of the documents found in P3 to P9 of their list of documents.
In reaching this conclusion Mr. Justice Blair provided a great overview of the legal principles relating to a claim of litigation privilege which I reproduce below:

[5]                Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254.  Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:

(a)        Was litigation in reasonable prospect at the time the document was produced, and

(b)        If so, what was the dominant purpose for the document’s production?

[6]                Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege.  With respect to the first factual finding, Wood J.A. wrote at ¶20 that

. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.

[7]                With respect to the second factual finding Wood J.A. wrote:

21.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

22.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p.541 of the report:

If material comes into being for a dual purpose — one to find out the cause of the accident — the other to furnish information to the solicitor — it should be disclosed, because it is not then ‘wholly or mainly’ for litigation. On this basis all the reports and inquiries into accidents — which are made shortly after the accident — should be disclosed on discovery and made available in evidence at the trial.

23.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

24.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[8]                The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39.  Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.

More on BC Supreme Court 'Costs' and ICBC Claims

Except in certain circumstances (such as where formal settlement offers are bested at trial under Rule 37B) a Plaintiff who succeeds in an ICBC injury claim in the BC Supreme Court is entitled to ‘costs’ (money paid under a Tariff system to compensate the successful litigant for the fact that they had to engage the BC Supreme Court process to achieve justice).  However, if a Plaintiff receives a sum of money within the jurisdiction of the Provincial Court (currently set at $25,000) then they typically are not entitled to costs.  Specifically, BC Supreme Court Rule 57(10) reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released awarding a Plaintiff Costs even though the judgement received was below $25,000.
The Plaintiff claimed injuries as a result of a BC motor vehicle accident.  After trial the claim succeeded and damages just below $25,000 were awarded.  In finding that the Plaintiff had ‘sufficient reason for bringing the proceeding in the Supreme Court’ and thus entitled to costs Madam Justice Dardi held as follows:

[10]            Accordingly, the plaintiff must establish that as at May 31, 2007 when she commenced her action, she had sufficient reason for bringing the claim in the Supreme Court.  When these proceedings were issued, the plaintiff was working full-time but continued to attend at physiotherapy treatments prescribed by her doctor.  She attended 13 treatments from May 4, 2007 to September 5, 2007.  On May 7, 2007, Dr. McGregor continued to note a decrease in neck flexion and tenderness to palpitation of the left shoulder muscles.  The medical-legal report tendered by plaintiff’s counsel is dated September 15, 2007.  In that report, the prognosis was that the plaintiff’s condition would gradually settle over the next 12 to 24 months and her injury was not likely to cause any permanent disability.

[11]            Given that the plaintiff did not have a medical-legal report at the time of the initiation of the action, nor had the defendant tendered any expert medical opinion, her counsel was not in a position to assess the quantum of general damages that may be awarded: Tucker v. Brown, 2008 BCSC 734.  As at May 31, 2007, in all the circumstances, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction.  Furthermore, unlike Walia, at the time of filing the proceedings, liability was not admitted; rather, the plaintiff had been informed that her claim was denied pursuant to the Insurance Corporation of British Columbia Low Velocity Impact Guidelines.

[12]            I have also considered the following comments of Mr. Justice Chiasson in Reimann at para. 35:

In my view, the approach generally taken by the Supreme Court is too limited.  It overemphasizes the policy of encouraging parties to proceed in the Provincial Court, but fails to consider the equally compelling policy consideration that parties are entitled to have respected their legitimate choice of forum.

[13]            In Bhanji v. Quezada, 2003 BCCA 445, 185 B.C.A.C. 301 at para. 9, the Court provided some guidance as to what would justify a plaintiff’s decision to proceed in the Supreme Court:

The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of $10,000.  That is sometimes a difficult decision for a plaintiff or his solicitor to make.  If the plaintiff decides to proceed in Supreme Court he must be prepared to justify that decision in the event he recovers less than $10,000.  In many cases, where there is sufficient medical or other evidence capable of supporting the larger claim, it will not be too difficult to justify the decision, especially if the damage award approaches the Provincial Court limit.  [emphasis added]

[14]            The award in this case is $24,263.47 prior to pre-judgment interest.

[15]            In summary, I have concluded that at the time the proceedings were commenced, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction.  The fact that the actual amount of the damages awarded to the plaintiff is very close to the Provincial Court limit supports this conclusion.  I am satisfied that the plaintiff has demonstrated sufficient reason for bringing her action in the Supreme Court.  I order that the plaintiff is entitled to costs under Appendix B at Scale B.

Can a Claim be Brought Into BC Rule 68 by Unilateral Amended Writ? – BCSC says Yes

Reasons for judgment were released today dismissing a defence motion to strike out an amended Writ of Summons bringing an action into Rule 68.
Rule 68 is the “expedited litigation’ rule and is mandatory for certain claims filed in the BC Supreme Court. Rule 68(2) deals with the types of claims that it applies to.  The subrule reads as follows:

Actions to which this rule applies

(2)        Subject to subrule (5), this rule applies to an action commenced in the Vancouver, Victoria, Prince George or Nelson registry after September 1, 2005, and to every action commenced in any registry after January 1, 2008, if

(a)        the only claims in the action are for one or more of the following:

(i)         money;

(ii)        real property;

(iii)       personal property, and

(b)        the total of the following amounts is $100,000 or less, exclusive of interest and costs:

(i)         the amount of any money claimed in the action by the plaintiff for pecuniary loss;

(ii)        the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;

(iii)       the fair market value, as at the date the action is commenced, of all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.

In this case the Plaintiff filed the action but did not endorse the Writ of Summons or Statement of Claim to bring the claim within the scope of Rule 68.  The Plaintiff then filed an amended Writ of Summons and Statement of Claim with a ‘subject to Rule 68’ endorsement.  The Defendant brought an application to strike the amended pleadings.   Master McCallum of the BCSC dismissed the defence application ruling that the failure to add the Rule 68 endorsement was a mere irregularity.  His key reasons are given at paragraphs 12-13 reproduced below:

[12]            Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule.  The absence of the required endorsement is an irregularity that may be remedied by amendment.  The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.

[13]            The defendants’ motion is dismissed.  The action is an expedited action and Rule 68 applies.  The amendments stand.  Costs of the motion will be to the plaintiff as costs in the cause.

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

ICBC Claims, Low Velocity Impacts and Engineering Evidence

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.
When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision.    This can be done in many ways.  Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court.  Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.
British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims.  Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible.  Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1]                The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary. 

[2]                Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists.  The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3]                Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4]                None of this material is before me.

[5]                The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle.  The vehicles were not examined by the engineer.  He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6]                Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7]                The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity.  The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon. 

[8]                The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour. 

[9]                The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident). 

[10]            The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff.  However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11]            It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven.  Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA.  There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments.  It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions.  Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12]            I find that the report is not admissible.