Low Velocity Impact – Myth or Reality?

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by Peter Buxton, trial lawyer

Often an insurance adjuster will comment that a person involved in a relatively minor motor vehicle accident could not have been injured because it was a “low velocity impact”. Further, you may be told that ICBC does not not pay for injuries and disability in this situation.

This can be confusing and disconcerting to someone who has been told by their doctor to remain off work for a period of time because they are suffering from soft tissue injuries. Further, you may have been referred by your doctor for secondary care such as physiotherapy or massage therapy and have had to pay out user fees.  While ICBC may cover basic fees for this service, they may decline to pay so-called “user fees”.

What about time lost from work?  Who is going to pay for lost wages or opportunity to earn income?

While judges are cautious about finding that a person was injured in the absence of proper medical evidence, they are equally cautious about accepting this ICBC corporate doctrine and defence of low velocity impact.

In a recent decision in Supreme Court Justice Ball commented that

“it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 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.”

Duda v. Sekhon, 2015 BCSC 2393.

It is therefore important that if you have been involved in a motor vehicle accident and you believe that you have been injured, you should get your doctor to make a record of your injuries and you should follow your doctor’s advice regarding whether you are to take time from work and perhaps attend for physiotherapy or massage therapy.

Even in the face of engineering evidence raised by the defence, the Court will often prefer the expert medical evidence from the plaintiff’s doctors regarding resulting injuries.  In Pitcher v. Brown, 2015 BCSC 1415 Justice Betton stated that:

[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. 

Do not just accept what your adjuster tells you about the force of the impact and their corporate policy regarding liability for your damages.  See your doctor and then see your lawyer for advice and representation if necessary.

 

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

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