Court Finds "LVI" Evidence Relevant But Not a Significant Consideration
In keeping with the ongoing trend of judicial criticism of ICBC’s ‘low velocity impact‘ defence (you can click here to access dozens of my archived posts detailing this) reasons for judgement were released earlier this week by the BC Supreme Court, New Westminster Registry, confirming that while defendants are free to put evidence of minimal vehicle damage before the court, it likely is not a significant consideration.
In this week’s case (Gron v. Brown) the Plaintiff was involved in two rear-end collisions, the first in 2003, the second in 2008. ICBC admitted fault on behalf of the rear drivers. Both collisions were low velocity impacts. ICBC stressed this evidence at trial. Mr. Justice Brown found that despite the low impact of the crashes the Plaintiff did suffer injury. The Court awarded $24,000 in non-pecuniary damages and provided the following practical critique of low velocity impact evidence:
[10] The defendants called two ICBC estimators, Mr. J. Hansen and Mr. J. Gali. Following the May 31, 2008 accident, they examined damage to the plaintiff’s Toyota Yaris and Mr. Godwin’s Oldsmobile Cutlass Ciera.
[11] Mr. Hansen, who examined the Yaris, noticed some minor damage on the Yaris’s bumper cover and slight sheet metal distortion on the Yaris’s trunk lid.
[12] Mr. Gali, who examined the Oldsmobile, found minor damage to the strip moulding on its bumper. Mr. Godwin did not want to have it repaired.
[13] Neither estimator looked under the bumpers for damage, which, they granted, possibly could have been present.
[14] Low velocity impacts are common. Defendants often question the relationship between minimal vehicular damage and physical injuries claimed after low velocity impacts. In the case at bar, neither of the estimators ventured an opinion on the inherent potential for injury from the minimal physical damage they found after examining the vehicles nor claimed the expertise to do so, but as noted by Vickers J. at para. 15 in Kirsebom v. Russell, [1995] B.C.J. No. 359 (S.C.), the defendants are “entitled to argue in this or any other case that, because there has not been motor vehicle damage, there can be no injury.”
[15] Barrow J. endorsed this view in Makara v. Weihmann, 2005 BCSC 1757, where he said at para. 7:
[7] I share this view. It follows that the extent of the damages to motor vehicles involved in a collision may well be relevant notwithstanding an admission of liability where the remaining issues make it so. In this case, the issues include whether the plaintiff suffered the injuries complained of in the accident or elsewhere. They include an assessment of the extent of the injuries generally. The nature of the collision is a relevant consideration in resolving these matters. It may not be a significant consideration, but it remains a relevant one. …