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 difficult to manage after the accident. I am satisfied that the pregnancy of the plaintiff which was diagnosed in July 2007, did not cause the injury and that the previous accident in 1998, or any other incident was not the cause of the injury reported.

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