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.

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