Category: Low Velocity Impact (LVI)

Court Rejects ICBC Low Velocity Impact Defence ; Dismisses Evidence of Expert Engineers

In Pitcher v. Brown, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for damages for pain and suffering, income loss, and out of pocket expenses. Liability for the accident was admitted by ICBC’S lawyer, however it was argued that the Plaintiff did not sustain any injury in the collision due to the alleged minimal impact of the collision. ICBC’S lawyer adduced expert engineering evidence at trial with respect to the force of the collision, however the Court rejected this line of defence. Although the Court had issues with the Plaintiff’s credibility, it still awarded the Plaintiff $40,000.00 in non-pecuniary damages.

 

[106] As to the forces involved and the probability of injuries resulting, the defence relies upon the opinion of two experts. Dr. Craig Good has a degree and Masters in Applied Science-Mechanical Engineering and a doctor in Philosophy in Mechanical Engineering. He opined that it is “highly unlikely that Ms. Pitcher sustained an acute Mild Traumatic Brain Injury at the time of the subject collision when her head contacted the head restraint.”

 

[107] Gerald Sdoutz is a professional engineer who provided opinion evidence about the impact severity in the collision and compared it with activities such as sitting down in a low back office chair, coughing or sneezing or being jostled in a crowd.

 

[108] While that expert evidence provides some insight I find its utility to be limited. It puts in perspective that the forces involved in the collision were modest. It does not preclude the conclusion that the plaintiff did receive injuries in this collision. In that regard I look to the expert medical evidence and the evidence of the participants in the collision. I will, in subsequent portions of this decision, address specifically my findings in relation to the plaintiff’s injuries.

 

[110] … I am not persuaded by the evidence that the nature of the forces involved did not cause any injury.

Court of Appeal Orders New Trial in Low Velocity Impact (LVI) Case

In Pacheco v. Antunovich, the Plaintiff was injured in a motor vehicle accident when she was rear ended by the Defendant. Liability was admitted by ICBC’S lawyer, however it was alleged that the accident was of a low velocity nature. The trial judge dismissed the Plaintiff’s action, ruling that there was no objective evidence to support her injuries, and that there was no scientific evidence regarding the mechanics of the collision to show that it was the cause of her injuries. The Plaintiff appealed to the British Columbia Court of Appeal, arguing that the trial judge made palpable and overriding errors of fact with respect to the mechanical nature of the collision, as well as the lack of objective evidence in relation to her injuries. The appeal was allowed, and a new trial was ordered.

 

[35] As previously noted, the judge found the appellant’s claim of injuries arising from the accident not to be reasonable or credible in the absence of independent or scientific evidence of how the mechanics of such a minor collision could have caused the injuries claimed. With respect, in my view the judge erred in finding that the appellant only “thought” her car was pushed forward in the collision when she in fact said that it was pushed forward (although she did not know how far). He also misapprehended her evidence that the collision caused two black dents to her bumper by describing them as “two small scratches” (a description advanced by defence counsel). He did not consider or he overlooked the appellant’s evidence that at the time of the collision her hands were on the steering wheel and her right foot on the brake, and how that positioning of her body might be relevant to the mechanics of the collision and her subsequent complaints of lower back and right side gluteal pain. Most significantly, however, he appears to have ignored the opinions of each of the appellant’s doctors that her lower back and right side gluteal pain were caused by the collision, which the respondents did not counter by any evidence to the contrary.

 

[36] The judge also rejected the appellant’s evidence because he found it was based largely on subjective complaints of pain with no supporting objective evidence. With respect, this finding is puzzling as all of the appellant’s doctors testified to objective findings of pain in the appellant’s lower back and right gluteal areas that, in their opinion, were caused by the accident. In addition, the X-ray and CT scan of the lumbosacral spine revealed disc bulging at the L5-6 level. Even Dr. Lockhart, who saw the appellant within an hour of the collision, observed a muscle spasm in the appellant’s right lower back. These were all objective signs of the appellant’s complaints of lower back and right hip pain.

Court Rejects Low Velocity Impact (LVI) Defence, Awarding $64,000.00 in Non-Pecuniary Damages

In Park v. Abd El Malak, the Plaintiff was injured in a motor vehicle accident when he was rear ended, and consequently brought an ICBC claim for damages for pain and suffering, diminished earning capacity, out of pocket expenses, and the costs of future care. Liability was denied by the Defendant, however the Court found the Defendant to be liable. ICBC’S lawyer also argued that it was a low velocity collision, and that any injuries alleged by the Plaintiff were caused by a pre-existing condition. The Court, as it so often does in low velocity impact cases, rejected this line of argument, and eventually awarded the Plaintiff $64,000.00 for the pain and suffering component of his claim.

 

[73] Counsel for the defendant has submitted that all aspects of Mr. Park’s ongoing back problems are related to his pre-existing disc problems that would have occurred in any event. He also submits that the low velocity of the collision supports that finding.

 

[74] I do not agree.

 

[75] The defendant’s submission ignores the overwhelming cumulative effect of the evidence of Dr. Heran, Dr. Craig and Dr. Kim, all of whom have opined that Mr. Park’s injuries were caused by the collision and that his pre-existing back conditions were asymptomatic at the time of the collision and were rendered symptomatic by the collision.

Court Rejects Low Velocity Impact (LVI) Defence Brought Forth By ICBC

In Dunne v. Sharma, the Plaintiff was involved in two separate motor vehicle collisions, and consequently brought ICBC claims for both matters, which were consolidated into one trial. The Plaintiff alleged soft tissue injuries to her neck and back, as well as psychological injuries. ICBC’S lawyer was of the belief that the Plaintiff’s injuries were minor in nature, and adduced evidence from an accident reconstructionist in order to show the relatively minimal impact in the accidents, however the Court rejected the LVI defence brought forth by ICBC.

 

[91] I appreciate that to have to been the case and I accept that common sense might generally dictate that a minor collision would not be expected to result in significant injuries. However, there is simply no basis upon which I am able to extrapolate the information concerning the velocity of the collision to a conclusion that the plaintiff’s injuries must therefore necessarily be of a certain type and degree. As has been judicially observed in a multitude of cases, the court cannot conclude that because the impact of the collision was relatively minor, then any resulting injuries must necessarily be minor as well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, 38 A.C.W.S. (3d) 924 (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. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

Court Heavily Criticizes ICBC’S Low Velocity Impact Policy

When there is a low velocity impact, resulting in minimal vehicle damage, ICBC will often argue that your tort claim for injuries is non-compensable, meaning that they will not pay you anything for your injuries. Their reasoning is that if there is a low velocity impact, with minimal vehicle damage, then there is no possible way you could have been injured, something else caused your injuries, or else you are embellishing your injuries. The B.C. Courts have consistently struck down the LVI defence, describing it as having no scientific justification, and being illogical. If you are a credible witness, have corroborating medical documentation, and have mitigated your damages, you will always have an excellent prospect of success at trial with respect to an LVI matter.

 

In Midgley v. Nguyen, the Plaintiff was injured in a rear end motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, special damages, and cost of future care. Liability was admitted, however ICBC’S lawyer argued that the collision was a low velocity impact, and that the Plaintiff was not injured. The Court would go on to award substantial damages in the Plaintiff‘s favor. In voicing its’ criticism of the LVI policy, the Court commented that :

 

[174]     The overarching submission of the defence was that “this was a nothing accident”. The tenor of the defence submission was that, since there was no damage to Mr. Midgley’s motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.

[175]     There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is to be determined on the basis of the evidentiary record at trial: see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.

[176]     As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr. Midgley’s body position at the time of impact – and the existence of his injuries.

[177]     On the totality of the evidence, I am persuaded that Mr. Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.

 

Court Awards $35,000 To Plaintiff In Claim Rejected By ICBC As A Low Velocity Impact

In Christoffersen v. Howarth, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for pain and suffering for the soft tissue injuries that she suffered. ICBC’S lawyer submitted that the impact was a low velocity one, and that the Plaintiff could not have been injured as a result. ICBC’S lawyer further submitted that the minimal damage to the vehicle was the only evidence needed to prove that the Plaintiff did not sustain any injury. The Court rejected these submissions outright, and awarded the Plaintiff $35,000.00 for pain and suffering for her injuries, which continued 2 1/2 years after the accident up to the time of trial, also noting that she had an excellent prospect of recovery.

 

[53]         The defendant takes the position that on the basis of the objective fact that there was minimal damage to the vehicles, the Court must exercise caution in accepting subjective injury complaints.  It must examine all of the evidence carefully before concluding that the plaintiff has met the onus of establishing, beyond the balance of probabilities, that she was injured as a result of the collision:  Price v. Kostryba (1986), 70 B.C.L.R. 397 (S.C.) at 398 – 399.  Defendant’s counsel submits that the collision impact was so negligible that plaintiff could not have suffered any injury.  Alternatively, she argues that the plaintiff has either exaggerated her pain or that it is attributable to activities unrelated to the accident. 

 

[54]         The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision.  Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury.

 

[58]         In order to accept the defendant’s argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision.  I am not prepared to do so.  I found each to be credible, honest and forthright.  Their evidence was uncontroverted by the defendant.  At most, the plaintiff’s evidence was shown on cross examination to have been exaggerated in a few minor respects.

 

[59]         The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan.  No evidence was led by the defendant regarding the amount of force that the plaintiff’s body was subjected to during the collision or how the shock absorbers built into the vehicles’ bumpers affected the damage that otherwise would have been sustained.  In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.

 

[60]         I accept that the collision was relatively minor.  However, even a low impact collision can cause injury:Lubick v. Mei, 2008 BCSC 555 at paras. 5-6.  Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff’s vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal. 

 

Court Rejects LVI Defence Yet Again

In Hoy v. Harvey, the Plaintiff suffered soft tissue injuries to her neck and back in a rear end collision. As is common with ICBC lawyers, a defence argument was made that the Plaintiff could not possibly have sustained injuries from such a low velocity impact. As expected, the Court rejected this line of argument, and awarded damages to the Plaintiff.

 

[46]         As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

 

[47]         I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

 

[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.

 

[48]         Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

 

Court Awards Damages Despite LVI Denial By ICBC

In Sun v. Sukhan, the Plaintiff was involved in a rear-end collision. There was very little vehicle damage of less than $900. Despite this, the Court awarded $20,000 in pain and suffering for effectively a nine month injury.

 

[19]         The issue in this trial is the amount to be assessed for non-pecuniary damages for the plaintiff, in the circumstances of this accident. The defendants say this was a low velocity impact accident.

 

[22]         The damage to the vehicle was described by the assessing adjuster, with respect to the bumper, as a plastic face all warped, and a gross total damage of $927.31 was found including all taxes. Total labour costs were estimated to be $607.20.

 

[23]         From the pictures that were put in evidence on the summary trial, the vehicle appeared to have sustained only minor damage, but again that does not mean that the plaintiff did not suffer genuine injuries, nor is it the case that with soft tissue injuries there is always a physical presentation that can be seen or felt. The pain remains real to the victim of the accident, and his credibility is not an issue on this application.

Court Highly Critical Of ICBC Low Velocity Impact Defence

In Dolha v Heft, the Court was very critical of ICBC’S Low Velocity Impact (LVI) defence, stating that:

 

[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….

 

[17] When assessing non-pecuniary damages, the court is not confined to the seriousness of the injuries suffered by the plaintiff. It is the impact of the injuries on the particular plaintiff that must be assessed: Stapley at para. 45. Some of the factors the court may consider when determining the quantum of non-pecuniary damages are summarized by the Court of Appeal in Stapley at para. 46. These include the age of the plaintiff, the nature of the injury, the severity and duration of the pain, disability caused by the injuries, emotional suffering, loss or impairment of lifestyle, impairment or loss of life, impairment of family, marital or social relationships, and impairment of physical and mental abilities.

Plaintiff Awarded Damages For Pain And Suffering Despite No Vehicle Damage

In De Leon v Harold, the Plaintiff described an impact that felt like a “bump”, with the Defendant describing it as a “tap”. There was $O in vehicle damage. Nevertheless, the Plaintiff was awarded $12,000 for a six month soft tissue injury.

 

[14]         In Lubick v. Mei [2008] B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:

 

[5]        The courts have long debunked 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.), Thackeray 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 the 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 not 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. . . .

 

[15]         In Dao v. Vance 2008 BCSC 1092 Williams J. stated:

 

[18]      This was undoubtedly a low-velocity collision where damage to the vehicle was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case, the principle evidence in support of the plaintiff’s claim is subjective, that is, it is her self report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

 

[19]      In response to those concerns, I would observe that there is no principle of law which says that because damage to the vehicle is slight or non-detectable that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces are greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

 

[16]  In this case, I am satisfied on the balance of probabilities that the plaintiff’s injury was caused by the accident. The plaintiff presented in evidence as forthright and credible and was not prone to exaggerate the nature of the accident or her injuries. Immediately after the accident she thought that she was fine but she began to experience back pain within a few hours by 7:00 p.m. that evening and attributed the pain to the accident. I am satisfied that the temporal link is sufficient to draw that conclusion. She reported the accident to her doctor the next day and saw her doctor as soon as she was able to, within five days of the accident. She was active in her own treatment plan by initiating chiropractic treatment even before she saw her doctor, and she continued to pursue chiropractic and massage therapy as recommended by her doctor as part of her recovery. It is clear to me from the evidence that the plaintiff’s own medical knowledge as a registered nurse assisted her in being proactive about her own treatment, minimizing the recovery period for the injury. Although she was encouraged to take one to two weeks off work, the plaintiff took four days off work which she felt she needed. The plaintiff was stoic and practical in her approach to the resolution of her injury.

 

[17]  I am satisfied that the evidence of Dr. Vorobeychik supports the testimony of the plaintiff. I do not find that Dr. Vorobeychik acted as an advocate for the plaintiff but rather was forthright and credible in her description of the injury and treatment. I accept the evidence of Dr. Vorobeychik that she would not expect to see objective evidence in a soft-tissue injury case. I am satisfied that although Dr. Vorobeychik was clearly a very busy general practitioner, she was aware of the important facts surrounding the accident including that the collision was a low-speed collision. She formed her opinion based on the subjective report of the plaintiff including the fact that the plaintiff did not have complaints before the accident and that the plaintiff was extremely upset, and found it di