08 Jun Low Velocity Collisions

Insurance companies typically argue that a Court ought to award no or minimal damages based on a “low velocity” defense.  They argue that if the collision involved a low velocity impact and caused minimal or no vehicle damage, then there will be minimal or no damage to the occupants of the vehicle.  The Courts have repeatedly rejected this argument.

Most recently, in Kallstrom v. Yip, 2016 BCSC 829, the Court addressed this issue.  Mr. Justice Kent stated:

[329]     Much scepticism, some might say cynicism, can accompany claims that significant injury has been sustained as a result of a minor MVA, and particularly so where there is little objective evidence of physical injury and where complaints of pain persist far beyond what most observers might consider to be “normal”.  It must be remembered, however, that not everybody has the mental or physical constitution of a rugby prop forward.

After summarizing the case law, the Court indicated that whether an individual has been injured and to what extent must be determined based on the evidence in each case.  In reviewing the evidence, the Court must scrutinize the Plaintiff’s evidence with care.  In this case, the Court noted this was complicated because the Plaintiff’s treating professionals were not witnesses.  The Plaintiff had a tendency to “catastrophize” her symptoms and focus on the collisions as the source of her problems, while minimizing other significant events, including her pre-existing medical conditions, family court litigation, an abusive employer and other injury accidents.  Overall, the Court approached the Plaintiff’s evidence with caution but did not consider her deliberately false or exaggerating for secondary gain.

In reviewing the expert evidence, the Court referred to the defense expert, Dr. Schweigel.  The Court described his report as an “old school, paternalistic report from an orthopod who clings to the view that a minor collision will not likely cause injury and who proclaims “amazement”” at the plaintiff’s ongoing pain complaints [para. 358].

After considering all of the evidence, the Court awarded damages as follows:

Non-pecuniary general damages$180,000.00
Past loss of earning capacity:
(plus pre-judgment interest to be calculated)
Loss of future earning capacity$245,000.00
Cost of future care$70,000.00
Loss of domestic capacity$0.00
Special damages
(plus pre-judgment interest to be calculated)

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