Minor accident - minor injury?

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If you imagine being in a minor car accident you probably don’t think about getting injured. Accidents happen all the time and the good news is that in most minor accidents, people don’t get injured. However, sometimes even small collisions do cause injury. If you sustain a serious injury as a result of a minor collision (also known as a low velocity impact or LVI collision) don’t be surprised if ICBC is not cooperative in settling your claim. To the insurance industry, significant injuries caused by low velocity impact (“LVI”) collisions seem to be as imaginary as the characters in my daughter’s upcoming play, Alice in Wonderland. As a result, settling LVI claims are often fraught with difficulty.

ICBC has had an LVI program since 1992. The program was apparently introduced for the purpose of reducing the cost of adjusting claims in minor motor vehicle accidents. Essentially, an accident would be classified by ICBC as LVI (referred to as a Minor/No Damage (“MND”) claim until 1999) if it occurred with an impact at 8 kilometers per hour or less. Unfortunately, where the accident is classified as LVI, your claim for personal injury is denied unless the claim falls within a set of criteria that removes it from the program.

A recent rumour suggests that the LVI program may be significantly reformed (see BC Injury Law and ICBC Claims Blog by Erik Magraken). If this is the case, while the change may affect ICBC’s willingness to pay some compensation for small injury claims, it is unlikely to significantly change how ICBC will continue to handle claims involving significant injury. In other words, they will still maintain the position that a minor collision equals minor injury, which isn’t always the case. Fortunately, the Courts don’t follow ICBC policy, they follow the law.

While the Court will consider evidence of the damage to the vehicle and the force of the impact these are only factors that can be considered along with the rest of the evidence in determining causation of the injuries complained of. The force of the collision may not be a significant consideration and there is not always a direct correlation between the severity of the accident and the injuries sustained.

In Gordon v. Palmer, 1993 CanLII 1318 (BCSC), Mr. Justice Thackray made the following statement with respect to causation and low impact accidents:

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.

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

The Courts continue to reject the LVI defence where the defendant leads no contradictory evidence, medical or otherwise, to support the position that the accident could not cause the injuries complained of.

Despite what the Courts have said, LVI claims are difficult cases that come with inherent biases. While most LVI claims will involve relatively minor injuries, the consequences for some can be devastating. If your injuries from an LVI collision are anything but minor, you will need a lawyer to help you achieve fair compensation. Attention to detail throughout the claim is critical. Issues of causation, pre-existing conditions and allegations of malingering and fraud will all need to be dealt with head-on for a successful result.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.