LVI Defence Rejected; $12,000 Awarded For Modest Injuries
Further to my dozens of previous posts discussing ICBC’s Low Velocity Impact (LVI) Defence to tort claims involving crashes with little vehicle damage, reasons for judgement were released today by the BC Supreme Court, Victoria Registry, once again rejecting this defence.
Today’s case is a great example demonstrating that compensable injuries can be sustained even in true ‘low velocity impacts‘. In today’s case (De Leon v. Harold) the Plaintiff was involved in a two vehicle collision in 2007 in Vancouver, BC. The Defendant rear-ended the Plaintiff’s vehicle. Fault for the crash was admitted. The trial focussed on whether the Plaintiff sustained any injuries.
There was no dispute that the collision was minor. The Plaintiff described the impact as a “bump“. The Defendant testified that her car “tapped” the Plaintiff’s car. The modest impact resulted in $0 in vehicle damage.
Despite this the Plaintiff was injured. The injuries were, fortunatley, relatively modest and made a meaningful recovery within 6 months. ICBC defended the case based on the LVI program and argued that the Plaintiff was not injured in the collision. Madam Justice Power rejected this argument and in doing so repeated the following helpful reasons addressing the LVI defence:
[14] In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:
[5] The courts have long debunked 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.), Thackeray 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 the 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 not 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. . . .
[15] In Dao v. Vance 2008 BCSC 1092 Williams J. stated:
[18] This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is, it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.
[19] In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle is slight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.
Madam Justice Power assessed the Plaintiff’s non-pecuniary damages at $12,000 and in doing so made the following findings about her injuries:
[19] I am satisfied that the plaintiff has discharged this burden and that soft-tissue injuries to her neck and back were suffered as the result of the accident. I am satisfied that the injuries were substantially resolved within two months of the accident as the result of the plaintiff’s active efforts in the first two months to attend chiropractic and massage therapy and that the injury was almost completely resolved within six months…
[22] Having regard to the fact that each award must be based on the unique circumstances of the case, and that the plaintiff’s stoicism is a factor that should not penalize the plaintiff (Giang v. Clayton 2005 B.C.J 163 2005, (B.C.C.A.)), I am of the view that an appropriate award for the plaintiff’s non-pecuniary damages in this case is $12,000. The plaintiff will be awarded $1,200 for four days of lost work as the agreed-to amount of the parties for special damages.
[23] Therefore the total damage award is $13,200. Costs may be spoken to or written submissions may be made at the agreement of the parties.