Low Velocity Impact Collisions Explained

If you are in a motor vehicle accident and the damage sustained to your vehicle is minimal or the crash involves a transfer of forces of less than 8 km/h, ICBC may classify your accident as a Low Velocity Impact (“LVI”) collision. By categorizing your car accident as a LVI, you may be denied compensation for your pain and suffering, expenses for your treatment, and your wage loss, both past and prospective.

In researching past court decisions for a recent LVI trial, I noticed
that, over the last several years, decisions coming out of the Supreme Court of British Columbia have been overwhelmingly critical of the ICBC’s
LVI policy. For example, in Lubick v. Mei, 2008 BCSC
555, a minimal damage rear-end collision resulted in an injury to the plaintiff:

[3] According to Jiang, a line of traffic was stopped waiting for the left-turn signal. When the light changed, the line started to move. Jiang testified
that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it. He said the vehicles “barely touched”
and that the impact was “very light, just a little boom”.

[4] The evidence of the ICBC estimator confirms that the impact was relatively minimal. The Lubick vehicle sustained cosmetic damage to the rear bumper.

Mr. Justice Macaulay went on to dismiss the logic behind ICBC’s LVI policy:

[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.

He went on to point out that the presence and extent of injuries are determined in 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.

A similar result was reached by Madam Justice Bruce in Dolha v. Heft, 2011 BCSC 737, where the Court found “there is no scientific justification for including that a low velocity collision is incapable of causing
injuries”:

Madam Justice Adair in Lee v. Hawari, 2009 BCSC 1904, found that the LVI defence does not follow logic or legal principle:

In Cariglino v. Okuda, 2011 BCSC 1429, the Plaintiff
was involved in a rear-end motor vehicle accident. The vehicle that she was a passenger in sustained $724 in damage and the defendant advanced
a LVI defence and argued that the small amount of damage “indicates the relatively minor nature of the collision and the likelihood that the complaints of injury and loss made by the plaintiff are either not related to this collision or are embellished.”
Mr. Justice McKinnon rejected this “bald proposition”:

In Gignac v. Rozylo, 2010 BCSC 595, the Plaintiff was
involved in a minor collision resulting in cosmetic damage to his bumper ICBC advanced the LVI defence, stating that “given the very minor nature
of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims.
The plaintiff … has suffered an extreme and unforeseeable physical or mental reaction to a minor event.”

Mr. Justice Wilson rejected the LVI defence in the following comments:

In summary, BC courts have recently called the LVI defence “myth” (Lubick, supra; Thomas v. Wormsley,
2009 BCSC 919; Jezdic v. Danielisz,
2008 BCSC 1863), following neither logic nor legal principle(Hawari, supra), and “void of scientific justification”
(Dolha, supra).

I recently appeared on behalf of a plaintiff at trial where the LVI defence was put forward. The judge rejected the LVI defence and our client was
awarded $23,653.74 plus his legal costs in bringing his claim to trial. Madam Justice Wedge made the following comments while ruling in favour
of our client:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s
position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged
soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician
or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer
as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson
was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward
and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than
three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.