COURT CASES on LOW VELOCITY IMPACT (LVI) COLLISIONS
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 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.
 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.
 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.
 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.
 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.
 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.
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.
 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).
 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:
 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,  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.
 I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.
 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.
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.
 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.
 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.
 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.
In Dolha v Heft, the Court was very critical of ICBC’S Low Velocity Impact (LVI) defence, stating that:
 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….
 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.
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.
 In Lubick v. Mei  B.C.C.A. No. 777, Macaulay J. stated at paragraph 5:
 The courts have long debunked the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer  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. . . .
 In Dao v. Vance 2008 BCSC 1092 Williams J. stated:
 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.
 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.
 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.
 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.