Tag: LVI

$115,000 Awarded in ICBC Low Velocity Impact (LVI) Claim

(Please note the case discussed in this post was overturned by the BC Court of Appeal in reasons for judgment released on September 21, 2010.  You can go to my September 2010 archives to read my summary of the BC Court of Appeal Decision)
Reasons for judgment were released today by the BC Supreme Court (Mariano v. Campbell) awarding a Plaintiff just over $115,000 as a result of injuries sustained in a 2006 rear end collision.
This was an ICBC Claim that apparently fit into ICBC’s Low Velocity Impact (LVI) Program.  The vehicles sustained modest damage and the ICBC Claims Lawyer defending the Claim argued the Low Velocity Impact defence.  The details of this are set out in paragraphs 33-41 of the judgment.

[33] The defendant says the accident was a low velocity impact claim.  The cost of repair for the Ms. Mariano’s 2005 Ford Escape was $1,712.96.  The cost of repair to Ms. Campbell’s 2000 Honda Civic was $3,714.07.

[34] The defendant argues that Ms. Mariano’s injuries should be consistent with a modest low impact accident and anything more than modest injuries from the accident are an unreasonable consequence.  Relying on Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 11-18, the defence argues that the injuries alleged are not a reasonably foreseeable consequence of the minor motor vehicle accident.

[35] Ms. Campbell was called by the defence presumably to testify that the collision was only a minor one.  However even Ms. Campbell admitted to sustaining whiplash injuries.

[36] Ms. Campbell was stopped in gridlocked traffic waiting for the traffic light to change.  When she saw the light turn green and traffic ahead of her starting to move, Ms. Campbell starting moving her vehicle.  When Ms. Mariano’s vehicle suddenly stopped, Ms. Campbell did not apply her brakes before she rear-ended the Ford.  When she got out of her vehicle, Ms. Campbell saw a stalled vehicle, one or two vehicles in front of her.

[37] Ms. Campbell could not estimate the speed of her vehicle at the time of impact but defence relies on her evidence that another car could not have fitted in between her vehicle and Ms. Mariano’s vehicle.  However, Ms. Campbell said that on the impact, she immediately felt pain in her neck, the middle of her back, and her right arm.  She went into shock and her whiplash injuries took three months to resolve.

[38] The defendant tried unsuccessfully to attack Ms. Mariano’s credibility and argues that because of the minimal impact, Ms. Mariano can only have suffered minimal injuries.  However I find Ms. Mariano a very credible witness.  She continues to work despite her symptoms.  The pain in her neck and shoulders prevents her from working the way she used to work, and from doing the things she used to enjoy doing.  She was unable to buy her sons a big pumpkin for Halloween as she had always done before because she is now unable to carry a big pumpkin.  Ms. Mariano became quite visibly distressed when she described the activities she can no longer participate in with her children because of her injuries or because she is now simply too tired at the end of the work day to do anything else.

[39] The defendant points to Ms. Mariano’s application for mortgage life and disability insurance where she filled in “March 2006” as the “date of the last episode” of neck pain and that Dr. Darby wrote a note to the insurance company indicating that Ms. Mariano had fully recovered from the accident with no complications or sequelae.

[40] The statements may not have been entirely accurate but it was understandable.  Ms. Mariano tried to put herself in the best light she could so that she could obtain, as she did before the accident, mortgage disability insurance with no exclusions.  The defendant’s negligence caused the insurance company to dramatically limit the mortgage disability insurance available to Ms. Mariano through no fault of her own.  The defendant should not be heard to be complaining too loudly.

[41] Terry Watson, an estimator for the Insurance Corporation of British Columbia, testified that neither Ms. Mariano’s vehicle nor Ms. Campbell’s vehicle sustained structural damage.  However, the hood of Ms. Campbell’s vehicle collapsed and slid under the Ford Escape, striking the spare tire underneath.  Mr. Watson agreed that that the impact of the collision was likely not absorbed by the bumpers.

The Defendants ICBC Claims Lawyer went on to argue that minimal damages should be paid because more severe injuries are not reasonably foreseeable from a minor or modest collision.
Madame Justice Loo rejected the defence arguments and accepted that the Plaintiff was indeed injured in this collision.  The court found that the Plaintiff suffered soft tissue injuries which have resulted in chronic pain and that there was a chance that these symptoms would linger in the future.
Damages were awarded as follows:
1.  Non Pecuniary Damages: $30,000
2.  Past Wage Loss: $45,428.91
3.  Loss of Earning Capacity: $15,000
4.  Special Damages: $574.16
5.  Cost of future care: $1,000
6.  cost of re-training: $23,307

$30,000 Non-Pecuniary Damages awarded in Minimal Damage Collision

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $40,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff was stopped at a stop sign in Surrey, BC when her vehicle was rear-ended by the Defendant.  The issue of fault was not disputed.  What was disputed was whether the Plaintiff was injured in this crash and if so what the amount of her damages ought to be.
This case seems to be one that fit ICBC’s Low Velocity Impact (LVI) criteria.  The vehicles involved had very little damage.  Evidence was called from an insurance estimator who testified that there was nothing more than cosmetic damage to the vehicle and the repair estimate was slightly more than $500.  It is a frequent strategy of ICBC defence lawyers to focus on the amount of vehicle damage in LVI cases and this strategy appears to have been employed in this trial.
Despite the LVI-nature of this crash the Plaintiff satisfied the court she sustained injuries.  The Court was impressed with the Plaintiff and made the following finding:
[43]            I find that Ms. Orrell is an honest witness and accept her evidence of the event and the injuries that she sustained.  I am satisfied that she was injured in the collision, and that, as a consequence, she experienced pain and discomfort and disruption to her usual activities.  Those have not fully resolved at the time of trial.
Mr. Justice Williams summarized the injuries as follows in concluding that $30,000 was fair for the Plaintiff’s pain and suffering (non-pecuniary damages) 
[51]             The accident and the resultant injuries caused a reasonably significant measure of pain, suffering and loss of enjoyment of life for Ms. Orrell following the event.  Considering both her evidence and the first report of Dr. Miki, that effect was most pronounced for a period of approximately six months, but continued, albeit in a less debilitating way, up to the point of trial.  It has impacted on her participation in many endeavours, including being physically active in such pastimes as running, going to the gym, gardening, ordinary household tasks and, importantly, being as active with her son as she otherwise would have been. As I have indicated earlier, there are however other factors that must be taken into account, including her pre-accident status and her pregnancy in 2006.  Both of those contributed to her discomfort too.
Cases like this one show time and time again that the extent of vehicle damage does not determine what a person’s tortious injuries are worth in British Columbia, rather medical evidence is key in valuing ICBC injury tort claims.

$70,000 Non Pecuniary Damages for Disc Herniation and Labral Tear

Reasons for judgement were released today awarding a Plaintiff close to $120,000 in damages as a result of a 2006 BC car accident.
The accident occurred when the Defendant failed to see the Plaintiff’s vehicle and struck the driver’s side door of the Plaintiff’s vehicle.
All the doctors who gave evidence at trial agreed that the Plaintiff ‘suffered a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain…’
The issue at trial was one of causation, that is, did this accident (which apparently did not cause a lot of vehicle damage) cause the Labral tear?  After hearing from several medical witnesses Madam Justice Gerow concluded that there was a causal connection, finding that ‘I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that (the Plaintiff’s) degenerative disease is minimal at this point.’
Dealing with the argument ICBC often makes at LVI trials (low velocity impact) that ‘the force of the accident was not such that it could have caused the injuries to the lumbar spine’ Madam Justice Gerow stated as follows:

35]            The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle.  The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries. 

[36]            Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered.  The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37]            As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.

In the end, damages were assessed as follows:

Non Pecuniary Damages: $70,000

Past Wage Loss: $13,452

Loss of Earning Capacity: $30,000

Special Damages: $1,498

Cost of Future Care: $5,000

This case is worth reading for anyone advancing an ICBC claim where the issue of causation of a disc bulge is at issue to see the types of competing positions that can be advanced by the doctors at trial along with the analysis that a court can engage in to navigate the waters of expert opinions.

Appeal of $70,000 Soft Tissue Injury Claim Dismissed

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.
The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’
The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome.  The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome.  In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.
The Plaintiff sought damages of over $1.7 Million.  Given the trial judges findings a total of $70,000 in damages was awarded.
The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.  The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.
The Court of Appeal dismissed the appeal.  In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a)  Confronting the Plaintiff

[33]            The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties.  The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70).  The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34]            The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges.  This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada.  In this country, we have an adversarial system, not an inquisitorial one.

[35]            Such a rule would be unworkable with respect to judges in our system.  Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses.  They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36]            The rule in Browne v. Dunn is not suited for application to judges.  The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation.  What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible.  That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37]            In addition, the rule in Browne v. Dunn has not been treated as an absolute rule.  Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence.  This feature of the rule is not adaptable to judges.

[38]            The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations.  The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14).  In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case.  It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25).  Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

 

Supreme Court of BC and Trial Costs

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.
The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.
When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.
When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.
Rule 57(10) of the BC Supreme Court rules states that
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?
Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ‘sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

More on LVI's, ICBC Claims and Soft Tissue Injuries

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.

BC Supreme Court Awards $16,324 For Soft Tissue Injuries in an LVI Accident

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.
The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.
The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.
The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.
This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.
The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.
In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”
Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.
The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.
In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.
Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

$19,840 Awarded for 15 Month Soft Tissue Injuries

In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.
The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.
A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.
The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”
The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.
In the end the court awarded damages as follows:
Pain and Suffering: $15,000
Past Wage Loss: $4,790.50
Mileage Expenses for treatments: $50
This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.
Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.

"No Impact Crash" Nets $40,000 Pain and Suffering Award

In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.

BC Supreme Court Takes Hard Stance Against LVI Defence

I have blogged several times with respect to ICBC’s LVI (Low Velocity Impact) Defence with a view towards educating BC vehcicle collision victims that ICBC’s LVI Policy is not the law, rather it is an internal policy geared towards saving ICBC money. 
ICBC’s LVI policy, when used in the defence of an injury claim, is often rejected by BC courts.  The LVI policy has one fatal flaw, assuming that the amount of vehicle damage (or lack therof) is related to the severity or possibility of sustaining injury. 
This week reasons for judgement were published in which the ICBC defence lawyer ran the LVI Defence.  Mr. Justice Macaulay rejected this defence and in doing so used the best language I have yet come across as an ICBC claims lawyer in explaining the flaw in the LVI Program’s logic.  At Paragraph’s 3-4 the court summaries the evidence led by the ICBC defence lawyer as follows:

[3]                According to Jiang, a line of traffic was stopped waiting for the left-turn signal.  When the light changed, the line started to move.  Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it.  He said the vehicles “barely touched” and that the impact was “very light, just a little boom”.

[4]                The evidence of the ICBC estimator confirms that the impact was relatively minimal.  The Lubick vehicle sustained cosmetic damage to the rear bumper.

Mr. Justice Macaulay then goes on to dismiss the logic behind the LVI policy in very strong words.  At paragraphs 5-6 of the judgement the court takes the following very harsh view of the so called LVI Defence:

[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.

[6]                I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

After hearing evidence from the Plaintiff, the Plaintiff’s doctor and physiotherapists, the court concluded that the Plaintiff suffered a minor soft tissue neck injury with associated headaches and a moderate low back soft tissue injury.  The court found that the injuries were largely recovered by the time of trial and awarded non-pecuniary (pain and suffering) damages for $18,000. 
This judgement shows once again, in no uncertain terms, that medical evidence is key in determining whether or not one sustained injury in an LVI crash, not the evidence of an ICBC vehicle estimator. If you are the victim of a BC auto collision, have been injured, and received the standard ICBC LVI claim rejection letter, this case is certainly worth having handy if you wish to take your claim to court.

Do you have questions about an LVI claim denial?  If so feel free to contact the author of this article for a no-obligation consultation.

Contact

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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