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Court Finds Low Velocity Collisions are Capable of Causing Injuries

Under ICBC’s Low Velocity Impact policy, personal injury damage claims are disallowed if the impact in a collision involves a velocity change of 8 km or less and if the so-called “LVI Committee”, which has been set up for this purpose, concludes that the injuries claimed are not plausible upon the basis of all the available information.

There is much that could be written about the flaws of the LVI policy.  For example, one scientific study has found that most whiplash injuries were observed with a velocity change of a mere 8 to 13 km/h.  Lawrence S. Nordhoff, Jr., in Motor Vehicle Collision Injuries: Biomechanics, Diagnosis and Management (2nd edition), notes that “each body region will have its own delta-V [change of velocity] in a crash.  In some circumstances, for example, the head may have more than twice the acceleration then the vehicle due to the head not being attached directly to the vehicle”.  With respect to judging velocity change he writes: “Even if the delta-V of an occupant’s vehicle is known, it is difficult for a biomechanist outside a controlled laboratory setting with instrumented accelerometers, to calculate an exact peak acceleration level for a region of the person’s body in rear-end impacts.”

While ICBC takes their LVI policy seriously, the courts do not.  In Lubick v. Mei [2008] B.C.C.A. No. 777, Mr. Justice Macaulay noted that “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.), Mr. Justice Thackeray (as he then was) made the following comments:

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.

In the cases of Dolha v. Heft, 2011 BCSC 737 and 2011 BCSC 738, Madam Justice Bruce applied this now well-established approach in awarding damages to two sisters injured when their car was rear ended while stopped in traffic. There was minor damage to the car’s rear bumper.  The trial judge said the following in the first of the two cases:

[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. [My emphasis]

In the result, Madam Justice Bruce awarded the plaintiffs $7,000 and $10,000 respectively.  In the first case, the plaintiff had completely recovered from her soft tissue injuries within six to nine months after the accident.  In the second case, the trial judge found that a greater award was justified because the plaintiff’s upper and lower back were involved, though she had also recovered within the same six to nine month period.

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