BC Supreme Court Reminds ICBC That The LVI Defence is "Illogical"
I’ve written numerous times about the so-called “Low Velocity Impact Defence” to tort claims and that is has been soundly rejected by the BC Supreme Court. Reasons for judgement were published this week on the BC Supreme Court website further criticizing the LVI Defence.
In this week’s case (Lee v. Hawari) the Plaintiff was injured in 2006 motor vehicle collision. The Defendant argued that the Plaintiff could not have been injured because this was a low velocity crash. Madam Justice Adair disagreed and found that the Plaintiff suffered “mild to moderate soft-tissue injuries to her neck, shoulder (including the right trapezius strain) and back, and she continues to suffer some symptoms, including pain, from those injuries as of trial“. The Court went on to award the Plaintiff $21,000 for her non-pecuniary damages. Prior to doing so Madam Justice Adair provided the following sound criticism of the LVI defence:
[53] Mr. Hawari appears to suggest that because this was a low velocity collision, Ms. Lee could not have suffered any injury, or could only have suffered minor injuries. However, this does not follow, either as a matter of logic or legal principle, as Mr. Justice Thackray reminded litigants (and their insurers) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.), at para. 4 to 6. See also Jackman v. All Season Labour Supplies Ltd., 2006 BCSC 2053, at paras 12 to 13, and Ceraldi v. Dathie, 2008 BCSC 1812, at para. 27. The presence and extent of injuries are to be determined on the basis of evidence given in court.
Published reasons such as these aimed at insurance companies behind the defendants are a welcome reminder that deciding whether compensable injuries were sustained in a collision should be determined by viewing all of the evidence, not by artificial standards giving undue focus to vehicle repair costs.