"Clearly Established Under Canadian Law" That the Low Velocity Impact Defense Misses the Mark
Although the “Low Velocity Impact” defense seems to be raised less and less, occasionally it still rears its head in personal injury trials.
Today, reasons for judgement were released by the BC Supreme Court, New Westminster Registry, finding that this defense misses the mark.
In today’s case (Duda v. Sekhon) the Plaintiff was injured in two relatively minor collisions. The Court ultimately awarded the Plaintiff damages for his injuries but prior to doing so made the following pointed comments about the merits of the LVI Defence –
[62] Counsel for the defendants spent considerable time and effort making the submission that the two accidents did not cause significant motor vehicle damage. However, it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 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.