Tag: Low Velocity Impact

BC Court of Appeal – Forseeability Is No Defense To Low Impact Collisions

Last year a BC Supreme Court level judgement dismissed a personal injury claim in part due to the logic that it is not foreseeable that someone will suffer injury in a low velocity impact collision in a parking lot. Today the BC Court of Appeal overturned this judgement finding the trial judge was wrong in their application of the foreseeability principle and that physical injury is foreseeable from collisions, even minor ones.

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Plaintiff Ordered to Pay Double Costs After Failed Parking Lot Collision Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.
In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”
Prior to trial ICBC made a formal settlement offer of $5,000.  ICBC asked for double costs.  The court agreed noting the offer ought to have been accepted.  In granting the request for double costs Mr. Justice Brown provided the following reasons:
[4]             The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.
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[7]             I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.

Courts Do Not Share ICBC's Views About Low Velocity Impact Injuries

As discussed many times, the ‘low velocity impact‘ defence is not particularly compelling and is often judicially frowned upon.  Certainly there is no legal principle which states that minimal impact forces result in no compensable injuries.  This was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Sourisseau v. Peters) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant.  The Defendant advanced the LVI Defence highlighting that the impact caused under $1,000 in repair costs to both vehicles and further that the impact was likely at speeds below 8 kmph.  With this evidence in hand the Defendant argued that the plaintiff “sustained no compensable injury“.
Mr. Justice Greyell rejected this line of reasoning and found the Plaintiff was indeed injured in the low velocity impact and awarded $22,5000 for her non-pecuniary damages.  In doing so the Court provided the following reasons:

[54] While the significance of the damage sustained in a collision may be a factor with which the Insurance Corporation is concerned it is not a matter which necessarily has a direct relationship to the plaintiff’s injuries. The issue for determination is whether the plaintiff’s injuries were caused or contributed to by the accident, Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (BCSC); Boag v. Berna, 2003 BCSC 779.

[55] In this latter connection, the defendant called Mr. Goudie an engineer who testified the change of velocity at the time of the collision was probably less than 8 km/h.

[56] In my opinion, in the circumstances of this case, the change of velocity alone is of little significance. At the time of impact Ms. Sourisseau had her head turned sideways. The evidence clearly establishes she had had pre-existing difficulties with neck and back pain. It likely took very little by way of an impact to trigger a recurrence of that pain. The defendant called no medical evidence to suggest otherwise…

60] Accordingly, I find the plaintiff suffered pain and suffering from soft tissue injuries for approximately 14 months with the odd flare-up continuing thereafter until early 2010 when she testified she felt she had returned to her pre-accident status.

[61] After reviewing the authorities submitted by counsel I award the plaintiff $22,500 for non-pecuniary damages.

ICBC's LVI Defence Rejected Yet Again

I’ve written about this topic too many times to give a lengthy introduction other than to say it is clear that the “Low Velocity Impact” Defence is not a legal principle.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, yet again demonstrating this.
In today’s case (Cariglino v. Okuda) the Plaintiff was involved in a 2008 collision.  She was a passenger in a vehicle that was rear-ended.  Fault was admitted.  She suffered various soft tissue injuries.  The vehicle sustained $724 in damage and the Defendant advanced the classic LVI defence arguing that this little damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”.
Mr. Justice McKinnon rejected this argument and in doing so provided the following comments:

[33] No medical opinions were proffered by the defence, rather defence submitted that the plaintiff’s evidence is “unreliable” as she downplays the role of significant family stressors in her life, fixating on the collision as the sole cause of all of her problems, both before and after the collision. Curiously, defence accepts that the plaintiff is credible but not reliable. That seems to me to be a distinction without a difference.

[34] I found the plaintiff to be generally credible and, for the most part, a reliable historian. Certainly she had stresses in her life that created difficulties but she was able to manage these much more easily before the collision. A defendant takes a plaintiff as he finds her. Here the defendant has caused injury to the plaintiff who was in a somewhat fragile state, given her many family issues.

[35] The defendant contends that the very minor nature of the collision would render “improbable” the nature and extent of the injuries the plaintiff contends she suffers. I was not provided with opinion evidence to support that contention and thus am unable to accept the bald proposition that minor damage equals minor injury.

The Court accepted that the Plaintiff suffered various soft tissue injuries which largely improved in the first year following the crash and with further therapy should fully recover.  Non-Pecuniary damages were assessed at $35,000.

LVI Collision "Like Bumping a Shopping Cart" Results in Damage Award


As I’ve discussed on many occasions, there is little credible medical evidence to suggest that a low impact collision cannot result in injury.  The LVI defense fails at trial far more than it succeeds.  That said, there is no denying that a claim for damages can be met with more skepticism if the triggering event is a low impact collision as opposed to a severe crash.  For this reason ICBC and other insurers like to highlight the minimal forces involved when Low Velocity Impact claims proceed to trial.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s claim (Ryan v. Klakowich) the Plaintiff was involved in a 2008 collision.  Fault for the crash was admitted.  The collision involved minimal forces with the defendant testifying that the impact was “like bumping a shopping cart against a counter“.  Despite this, and despite some reliability concerns the trial judge raised with the Plaintiff’s evidence, the Court accepted the Plaintiff sustained real injury.  In assessing non-pecuniary damages at $25,000 Madam Justice Ross provided the following reasons:



[73] Ms. Ryan’s complaints arise from a collision of very low impact, producing minimal damage to her vehicle and none to the defendant’s. Her injuries are said to be soft tissue injuries for which there are no objective indicators. In such circumstances Ms. Ryan’s credibility is of particular importance since the physicians are to large extent dependent upon her subjective reports in reaching their opinions.

[74] I find Ms. Ryan to be a poor historian. It is my impression that she minimized the extent and duration of the injuries she suffered in previous accidents, both in her testimony and in her reports to physicians in preparation for this litigation. She also minimized the significance of the other medical conditions with which she was dealing. It is her testimony that the burden of taking care of her mother did not interfere with her work or with her social life because her other siblings would fill in. However, this was inconsistent with what she told Dr. Anderson. He reported that she was in considerable distress concerning the care of her mother on several occasions, reporting that the disproportionate burden fell upon her and that her siblings were not providing sufficient assistance…

[78] The medical evidence is of limited assistance since the opinions are to a great extent dependent upon Ms. Ryan’s subjective reports. In addition, Dr. Anderson had not treated Ms. Ryan before the 2008 Accident and so had no personal knowledge of Ms. Ryan’s condition prior to the 2008 Accident. Ms. Ryan did not provide Dr. Jung with a full history. Finally, the additional investigations that Dr. Jung and Dr. Bishop recommended have not been undertaken. In the result, there is no medical opinion that bears on the causation of the neurological symptoms Ms. Ryan now complains of in her right arm.

[79] I accept that Ms. Ryan suffered mild to moderate soft tissue injuries to her neck and shoulder girdle in the 2008 Accident. As a consequence, she experienced pain and stiffness in her neck, upper back and shoulder and headaches. I accept that these symptoms have lingered. While it is the case that many, perhaps most people, would not have suffered such injuries in such an accident, I accept that the combination of her previous injuries, scoliosis and osteoporosis would render her more fragile and susceptible of injury…

[83] I award $25,000 in non-pecuniary damages.

BC Supreme Court Criticizes ICBC LVI Defence as having "no scientific justification"


As frequently discussed, the Low Velocity Impact (LVI) defence has been criticized many times by the BC Supreme Court.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating yet again that the LVI defence is not a recognized legal principle.
In today’s case (Dolha v. Heft) the Plaintiff was involved 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered a “mild to moderate” whiplash injury which resolved in several months.  The Court awarded the Plaintiff $7,000 for non-pecuniary damages.  Prior to doing so the Court criticized the LVI Defence as having “no scientific justification“.  In assessing damages Madam Justice Bruce provided the following reasons:

[16] Based on the evidence led in this summary trial application, I find there is no reason to doubt the veracity of the plaintiff’s claims that she suffered pain in her neck and upper back, as well as headaches and dizziness, immediately following the accident and for a period of six to nine months thereafter. Moreover, there is no evidence to contradict Dr. Samaroo’s opinion that these symptoms arise from soft tissues injuries caused by the accident. There is no scientific justification for concluding that a low velocity collision is incapable of causing injuries. The minor nature of the collision is only one factor to consider when assessing the severity of the injuries suffered by the plaintiff. While the medical evidence before the court is primarily based on the subjective complaints of the plaintiff, there is no evidence that the plaintiff’s symptoms continued beyond what would normally be expected for these types of soft tissue injuries. Thus the caution expressed in Butler and Price is not relevant on the facts of this case….

[19] Turning to the factors relevant to the assessment of non-pecuniary loss, it is apparent that the injuries suffered by the plaintiff were of a minor nature. While she experienced pain and required medication to alleviate this symptom, the plaintiff had full range of motion in her back and her neck throughout her convalescence. In addition, the symptoms experienced by the plaintiff were not sufficiently severe that she required passive modalities such as physiotherapy, massage therapy or chiropractic manipulation. The plaintiff last saw her doctor for pain due to accident-related injuries in late November 2008, some five months after the collision. The plaintiff’s injuries resolved entirely after a relatively short period of six to nine months. The headaches persisted for about a year; however, they decreased in intensity and severity over time. The plaintiff has no residual effects from the injuries. Lastly, the plaintiff’s lifestyle was only moderately impacted by the injuries. She was unable to run for a couple of months.

[20] The plaintiff suffered some emotional anxiety as a result of the accident and had sleep difficulties. The sleep problem resolved quickly and the increased anxiety was modest in severity and did not persist over a lengthy period of time.

[21] Lastly, the plaintiff is a relatively young woman who does not suffer from any particular emotional or physical condition that rendered or could have rendered the injuries she suffered more disabling.

[22] Having regard to the range of non-pecuniary damages awarded in the cases cited by the parties, and the particular circumstances of the plaintiff, I find an award of $7,000 is appropriate.

ICBC Injury Claims and the Relevance of Vehicle Damage


The law has become clear that while ICBC’s LVI policy is not a legal principle and is not a valid legal defence, the amount of vehicle damage is a factor judges and juries can consider in a BC injury claim.  Reasons for judgement were released this week by the BC Court of Appeal demonstrating this.
In this week’s case (Cahoon v. Brideaux) the Plaintiff was injured in a car crash.  There was minimal vehicle damage.  The Plaintiff’s claim was largely rejected by a Jury at trial.  Prior to giving their verdict the Trial Judge told the Jury that “From that evidence you are asked to draw inferences about how hard Mrs. Brideaux struck Mrs. Cahoon, and from those inferences you are asked to draw another inference about what injuries that impact caused to Mrs. Cahoon.
The Plaintiff appealed arguing in part that the Judge was wrong to give the above instruction to the Jury.  The BC Court of Appeal disagreed and gave clear reasons indicating that a Court can consider the amount of vehicle damage during an injury claim.  Specifically the High Court stated as follows:

[82] The issue addressed in the passage from Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) quoted in Lubick was whether the “no crash, no cash” policy of the Insurance Corporation of British Columbia was founded on a valid legal or medical principle.  Mr. Justice Thackray noted that no evidence was called to substantiate the theory that minimal impacts could not cause injury and went on to resolve the nature and extent of the plaintiff’s injuries in that case on the lay and medical evidence before him.  Similarly, it appears the issue addressed in this passage in Lubick was the defence contention that such a minimal impact could not have injured the plaintiff.  However, these passages do not represent a statement of legal principle that in low-impact collision cases, the defendant has the burden of proving the plaintiff’s injuries were not caused by the collision.  It is well-settled law that the burden is always on plaintiffs in these cases to prove the nature and extent of their injuries and to prove they were caused by the defendant’s negligence.

[83] Here, the respondents did not argue that Mrs. Cahoon could not have been injured in the collision.  Rather, they conceded she suffered some injury but submitted that she was exaggerating her injuries and that she had not proven that all of the injuries and losses of which she complained were caused by the collision.  The burden of proof of these matters lay with Mrs. Cahoon – the respondents did not bear the burden of proving that the injuries she claimed were not caused by the collision.

[84] The evidence of automobile damage was relevant to the question whether Mrs. Cahoon suffered the injuries she claimed as a result of the collision.  In R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24 (Ont. C.A.), Doherty J.A explained relevance as follows:

… Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.”  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[85] Human experience and logic, qualities for which juries are particularly valued, are the essence of common sense.  They suggest there is a relationship between the force of an impact between two vehicles and the resulting damage to the vehicles.  Thus, evidence of minimal damage makes it more likely the force of the impact was minimal (Fact A).  Human experience and logic also suggest there is a relationship between force exerted on the human body and injury caused by the force.  Thus, evidence of minimal force applied to the human body tends to make it more probable that the resulting injury would not be serious (Fact B).  It follows that the evidence of vehicle damage was relevant on this issue and the trial judge did not err in instructing the jury that they could use it as circumstantial evidence.

[86] It follows, as well, that I would reject Mrs. Cahoon’s submission that the trial judge erred in permitting the jury to use this evidence to “override” the expert medical opinion evidence on causation.  The weight to be given low-impact evidence will depend on the particular circumstances of each case.  Here, Mrs. Cahoon led expert medical opinion evidence that the collision caused her very serious injuries.  These opinions on the causation issue were based on various facts, including Mrs. Cahoon’s descriptions of her injuries and the dynamics of the collision.  The jury was required to consider the expert opinions but was not bound to accept them.  Rather, it was for the jury to determine what weight to assign to those opinions after weighing all of the evidence, including the circumstantial evidence of the force of the collision.

Why ICBC's "Low Velocity Impact Program" Is Not the Law in British Columbia

Countless people have been injured in car crashes over the years in British Columbia and had their injury claims denied by ICBC on the basis of the Low Velocity Impact Program.
I have written many times about this program explaining that it has no legal force in BC.  Reasons for judgement were released today proving this yet again and in doing so providing one of the better explanations of why a certain threshold of vehicle damage is not necessary in order to have a successful personal injury claim in this Province.
In today’s case (Gignac v. Rozylo) the Plaintiff was involved in a 2004 collision in Victoria, BC .  At trial a ‘senior estimator‘ employed by ICBC testified that the Plaintiff’s vehicle suffered “cosmetic damage only to the rear bumper cover. ‘ and that ‘there is no bumper misalignment or sheet metal damage‘.
The Plaintiff was injured but ICBC advanced the LVI defence arguing that “given the very minor nature of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims‘.
Despite finding that the crash was ‘one of the more minimal contacts between motor vehicles in the history of the internal combustion engine‘ Mr. Justice Wilson outright rejected the LVI defence and in doing so provided the following very useful summary of the law:

[30] I am not persuaded that the third party’s argument is open to me to accept.  There are two propositions which lead me to that opinion.

[31] First, in Gordon v. Palmer , Thackray J. (as he then was) made the following observations:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  …  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slips and falls.  … The presence and extent of injuries are to be determined on the basis of evidence given in court.

[32] Second, in Price v. Kostryba,McEachern, C.J.S.C. (as he then was), said at para 4:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash.  Human experience tells us that these injuries normally resolve themselves within six months to a year or so.  Yet every physician knows some patients whose complaint continues for years, and some apparently never recover.

[33] Therefore, I conclude that Gordon is authority for the proposition that the magnitude of forces unleashed, in any given contact, is not determinative of the injuries sustained.  Accordingly, in this case, there was a “real risk” of the harm now complained of.

[34] And, Price is authority for the proposition that, objectively, some patients, of “ordinary fortitude” sustain injuries which are permanent.  In this case, I am not dealing with the particular vulnerabilities of this particular plaintiff.

[35] In result, I find the defendant liable for the plaintiff’s injuries.  That is to say, the defendant’s carelessness caused, as I will describe below, the plaintiff’s injuries, in fact and in law.

ICBC's Low Velocity Impact Program – Not a "Legal Principle"

Reasons for judgement were published today on the BC Supreme Court website considering the Low Velocity Impact (LVI) defence in a car crash case.
In today’s case (Mavi v. Booth) the Plaintiff was involved in a 2006 rear-end collision in Langley, BC.  The rear motorist denied being at fault for the crash until the first day of trial when liability was admitted.   Despite admitting fault, the lawsuit was fought using the LVI defence with the Defendant’s lawyer arguing that the Plaintiff did not suffer any injuries “since it was a low-velocity impact.”
In support of his injuries the Plaintiff called evidence from Dr. Hirsch, a physiatrist, who provided the following testimony:

[11]    According to Dr. Hirsch, the expert physiatrist called on behalf of Mr. Mavi, the question of whether someone in Mr. Mavi’s position suffered an injury from a low-velocity impact depends on the change in velocity.  Dr. Hirsch’s evidence was:

A:         I see people who have car accidents like this and they’re not the driver and they walk away from that or they have relatively little symptoms.  I see people who have relatively little car damage.  You have to look not so much at the car but the change in velocity of the car.  So you could have very little damage because there was no absorption of power to the car but the car was accelerated forward.  And I don’t know that.  What I’m saying is that there’s not a direct correlation between car damage and injury to the living organ in the car.  It depends on the change in velocity.

Q:        The change in velocity is the more important factor to look at?

A:         For the occupant, yes.  The change in velocity…

Mr. Justice Walker fond that the Plaintiff indeed was injured in the crash despite there being little vehicle damage.   The Court awarded the Plaintiff $27,500 in non-pecuniary damages for his soft tissue injuries which were expected to make a full recovery.  In rejecting the LVI defence Mr. Justice Walker provided the following useful statement:

13]    In addition to it being unchallenged by rebuttal evidence, I found Dr. Hirsch’s evidence to be consistent, candid, logical and persuasive.  I found the evidence of Mr. Mavi’s general practitioner, Dr. Beytell, to be of the same persuasive effect.  Both Drs. Hirsch and Beytell opined that Mr. Mavi suffered injuries from the subject motor vehicle accident.

[14]    There is no rule of law or legal principle that a victim of a low-velocity rear-end impact does not suffer an injury compensable in law.  In each case, it is a question of fact.

ICBC Injury Claims: Provincial Court vs. BC Supreme Court


When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in.  Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?
Both courts have notable differences.  Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction.  The maximum award for damages that can currently be made in the Provincial Court is $25,000.  The Supreme Court has an unlimited monetary jurisdiction.
For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court.  But what about more modest claims, claims that may fall in the $20,000 – $30,000 range?  Where should these be filed?
While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers.  Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court.  There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.
While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now.  Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.
In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC.  This was a Low Velocity Impact.  ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.
The Plaintiff’s lawyer sought a significantly higher award.  Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500.  In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court.  Specifically Judge Kay stated as follows:
This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically.  This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court.  In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life.  While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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