Tag: Madam Justice Adair

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.

The Crash Was My Fault, on Second Thought…


After a collision the parties involved often speak with each other inquiring whether they’re OK, exchanging insurance information and even discussing whose at fault.  Admissions made in these conversations can be used in Court against the party making the admission and such evidence can prove fatal in a personal injury lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court.
In today’s case (Barrie v. Marshall) the Plaintiff motorcyclist rear-ended a vehicle driven by the Defendant.  The Plaintiff sued arguing that the Defendant was at fault claiming that she had suddenly and unexpectedly stopped her vehicle in front of the Plaintiff leaving him inadequate time to stop.  The Defendant disagreed and gave evidence that she activated her turn signal and was slowing to make a right hand turn when she was rear-ended.
The Court ultimately accepted the Defendant’s version of events over the Plaintiff’s and dismissed the personal injury lawsuit.  In reaching this decision the Court placed a great deal of weight in admissions the Defendant made in the aftermath of the collision.  Madam Justice Adair set out the following in demonstrating the negative impact out of court ‘admissions’ can have in a lawsuit:

[21]         Two members of the Abbotsford Police, Constables Davidson and Zawadsky, attended at the scene.  Both testified at trial.  They arrived after the ambulance, and found Mr. Barrie’s motorcycle in the intersection and Ms. Marshall’s car on the shoulder of Marshall Road.  The gist of the officers’ evidence is that they carried out a brief investigation, spoke to both Mr. Barrie and Ms. Marshall, and concluded that the collision was Mr. Barrie’s fault.  This conclusion was based at least in part on a statement that Constable Zawadsky testified Mr. Barrie made to him (parts of which Constable Davidson testified he overheard) to the effect that he (Mr. Barrie) was not paying attention and ran into the back of Ms. Marshall’s car.  Mr. Barrie denies making any such a statement to anyone, although he did testify that he told Ms. Marshall the accident was probably his fault.

[22]         Of course, the evidence concerning Mr. Barrie’s statement or statements at the scene is not conclusive of fault or liability.  However, it is evidence I can consider in determining liability on the facts of this case…

The existence of such a statement provides a reasonable explanation for the conduct of the officers at the time in relation to the accident, and the lack of further investigation.  The officers were satisfied that Mr. Barrie had assumed responsibility for collision.  Neither of the officers was told anything to contradict what Mr. Barrie told Constable Zawadsky.

[35]         I find therefore that Mr. Barrie, an inexperienced driver, was operating his motorcycle without due care and attention, and was following Ms. Marshall’s vehicle too closely as they travelled north on Mt. Lehman Road.  As a result, Mr. Barrie was unable to avoid colliding with Ms. Marshall’s car when she went to make a right turn onto Marshall Road from Mt. Lehman Road…

[37]         In summary, Mr. Barrie has not discharged the onus on him to show that he was not at fault for the collision.  Rather, Mr. Barrie’s conduct caused the collision.

[38]         It follows that Mr. Barrie’s action is dismissed

The bottom line is that if you are involved in a collision you need to know that admissions can be used against you in subsequent court proceedings.  If you are interested in this topic you can click here to read another case where a post-accident admission proved fatal to a party in a personal injury lawsut.

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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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