Another Judicial Rejection of ICBC's "Low Velocity Impact" Defence
I’ve written numerous times that ICBC’s Low Velocity Impact Defence (“LVI”) is not a legal principle. A defence based on this principle was rejected yet again in reasons for judgement released today by the BC Supreme Court, Vancouver Registry,
In today’s case (Hunter v. Yuan) the Plaintiff’s vehicle was rear-ended by a taxi driven by the Defendant in 2006 in North Vancouver, BC. Fault for the crash was admitted by the rear motorist.
Both parties agreed that the accident was “minor in nature“. Despite the minor nature of the crash the Plaintiff was injured and continued to be troubled by her injuries by the time the claim reached trial some 4 years later. The Defendant argued that this was a “minor accident which resulted in a minimal injury“. In keeping with ICBC’s LVI policy the Defendant argued that the Plaintiff should receive nothing for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) or in the alternative “If the court were to award damages for non-pecuniary loss, the defence suggests that an award should be very modest“.
Madam Justice Morrison rejected the defence submission and awarded the Plaintiff damages for her losses including $35,000 for non-pecuniary damages. In arriving at this figure the Court provided the following reasons:
[68] First, I found the plaintiff to be entirely credible. She did not seek to exaggerate, and gave her evidence in a very direct manner. She was responsive to questions, and did not seek to avoid or be defensive with the tough questions posed on cross-examination. I certainly accept her evidence with regard to her symptoms, past and present. There is no credible or reliable evidence of any pre-existing injuries or conditions, and her injuries and ongoing symptoms are due to the accident of October 20, 2006.
[69] It is true that the force of the accident was not major, but the evidence points to no other cause of the injuries and symptoms experienced by the plaintiff, other than the accident of October 20, 2006.
[70] To say that the plaintiff experienced only three weeks of disability, or six or eight weeks at the most, is to ignore most of the evidence of the plaintiff, her family doctor, her fiancée, her father and Dr. Travlos.
[71] Although by the summer of 2008 the plaintiff felt she was 85% recovered, she testified that at the present time, the flare-ups occur frequently, sometimes once every week or two, or more often, if she does activities that cause such flare-ups. The flare-ups result in tension and muscle knots between her shoulder blades, particularly toward her right shoulder and neck area, and headaches occur. She has sleep disruptions, difficulty getting to sleep, and voluntarily avoids some activities that she enjoyed prior to the accident; she avoids them rather than put herself in a position where pain or a flare-up will occur.
[72] The evidence would indicate that her recovery has plateaued. She takes Tylenol and Cyclobenzaprine on occasion, and she finds that she must remain active and exercise, as inactivity will make her symptoms worse.
[73] The plaintiff’s pain is not chronic and continuous, but she suffers pain and increased pain with certain kinds of exertion. It has been four years since the accident occurred, and Ms. Hunter continues to have pain in her shoulders, particularly her upper right back, and neck. Ordinary daily activities such as carrying groceries, doing the laundry, vacuuming, and certain types of cleaning cause flare-ups, which result in pain.
[74] Counsel for the plaintiff, in addressing the issue of non-pecuniary damages, has cited six cases where non-pecuniary damages ranged from $30,000 to $50,000. Relying primarily onJackman v. All Season Labour Supplies Ltd. and Crichton v. McNaughton, the plaintiff submits that an award of $40,000 would be reasonable for non-pecuniary damages.
[75] I agree that those two cases are helpful, given the evidence in this case, and I would award $35,000 for non-pecuniary damages.
This judgement demonstrates the reality that minimal crashes can result in injury including long-standing injury. The LVI Defence is divorced from medicine and law. The rare occasions when the LVI defence succeeds before a judge is where the Plaintiff is found to lack credibility. When injuries are supported with medical evidence it is rare for a lack of substantial vehicle damage to prove fatal to a personal injury lawsuit.