Is ICBC denying your claim because your accident is a “Low Velocity Impact”? Does ICBC claim that you don’t have a major injury resulting from the low speed collision?
In a collision involving lesser speeds and little physical damage to the cars involved, ICBC frequently takes a “no crash, no cash” approach to claims for injuries sustained. This is an internal policy decision made by ICBC to limit your claim. It usually has very little, if anything, to do with how significant your injuries may be. Frequently, a Low Velocity Impact causes major injury.
In Wallman v. John Doe, the Plaintiff was both an emergency room physician and also a developer of real estate rental properties. He was involved in a motor vehicle accident when a Whistler transit bus rear-ended him at a low speed. The damage to the vehicles was minor.
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Immediately following the accident, Dr. Wallman experienced a variety of symptoms including headaches, dizziness, nausea, physical and mental fatigue, confusion, depression, and problems with concentration and memory. Dr. Wallman claimed that he suffered a “mild traumatic brain injury” (MTBI), sometimes just called a “concussion”, in the accident and continued to suffer from post-concussive syndrome. As a result of these symptoms, he was unable to continue working in his profession as a physician.
One of the main issues before the court was one of causation: could such minimal forces and impact produce such dramatic results?
Throughout the trial, a number of authoritative articles were referenced concerning the biomechanics and probability of injury in motor vehicle accidents. In defence of the claim, counsel for ICBC and the Defendants introduced the engineering evidence of 4 separate experts, two of which did simulation crash tests and accident reconstruction.
The main thrust of the defence was that an injury of this type was extremely unlikely with the forces involved in the collision. However, under cross examination, the defence’s biomechanical expert agreed that:
- it was difficult to determine the severity of a rear-end collision injury from vehicle damage alone; and
- some people are more prone to concussions than others and that a ‘spectrum of tolerances’ existed in the human body as level of injury can vary greatly from person to person.
In making his ruling, Mr. Justice Weatherill noted, in the opening paragraph of his decision, “Occasionally a seemingly innocuous event can have tragic consequences”.
Although the impact speeds and physical damage to the vehicles was minimal, the court ultimately found overwhelming evidence that Dr. Wallman had still suffered an MTBI, (also called a concussion), in the accident and that this injury was significant.
The evidence of Dr. Wallman’s friends, family and colleagues, many of whom were physicians themselves was very important to contradict ICBC’s experts. Dr. Wallman’s friends, family and colleagues witnessed the changes in Dr. Wallman and provided key testimony to the Court regarding his inability to function at the same level he was at before the accident.
As always, in cases of mild traumatic brain injury/concussion, where there is little or no objective medical evidence by way of MRI or CT Scan, lay witness evidence, (the evidence of friends and family) was absolutely crucial to the Plaintiff’s case. In the end, the court awarded him $200,000 in non-pecuniary damages.
In the Court’s written decision regarding causation, Mr. Justice Weatherill made the following remarks:
 The defendants say the damage to the Bus and to the plaintiff’s vehicle was so minor that the plaintiff could not possibly have suffered the injuries he complains of. They sought to bolster their position with engineering evidence they submit demonstrates that the forces created by the collision and transmitted to the plaintiff’s body were minimal at best. Alternatively, they argue that any injury the plaintiff suffered has either been exaggerated or is not attributable to the Accident.
 According to Dr. Anton, who I found to be an impressive and credible expert witness, there is no authoritative medical literature setting out the threshold of force required to produce a brain injury in a vehicle passenger. However, there is a relationship between the forces occurring in a motor vehicle accident and the likelihood of injury, albeit far from a one-to-one relationship. He opined that, although it is useful to know something about the mechanics of a collision, those mechanics do little to assist the medical diagnosis. Accident reconstruction discloses nothing about an individual’s vulnerability to the forces. The forces that can cause a brain injury are either (a) direct (a linear force causing a blow to the head with injury at the site of the blow or, if the brain moves, at the other side of the skull) or (b) diffuse (rotational causing traction and stretching of the long nerve fibres resulting in brain injury at locations other than where the direct trauma occurred).
 According to the authoritative definitions commonly used by physicians to diagnose concussions, the plaintiff sustained a MTBI. The defendants do not suggest otherwise. Instead, they merely submit that because the plaintiff’s complaints are subjective and that he complains he suffers from virtually all of the symptomatic criteria when only two or three would suffice, he “doth protest too much” and must have fabricated his evidence.
 Although the medical opinions at trial were based largely upon the plaintiff’s subjective descriptions of his symptoms, the fact that the plaintiff’s symptoms are subjective does not mean they are not real.
 To accept the defendants’ submissions that the plaintiff is a malingerer and that the forces imparted on the plaintiff by the Accident could not have injured him, I would have to completely disregard the evidence of the plaintiff, Ms. Roth and all other lay witnesses called by the plaintiff (several of whom are physicians) who testified about the plaintiff’s sudden and dramatic change in character and personality in the hours, days, months and years following the Accident. I found each to be candid, credible, forthright and, above all, honest. The defendants’ theory of the case is devoid of credulity and appears to have been inspired by nothing more than a conviction that the Accident impact was minor and could not possibly have injured anyone.
 I accept that the Accident was relatively minor in terms of the physical damage sustained by the Honda and the Bus. However, even a low-impact collision can cause injury: Lubick v. Mei, 2008 BCSC 555 (CanLII), 2008 BCSC 555 at para. 5.
 In my view the plaintiff has established beyond the balance of probabilities that the dramatic and sudden onset of symptoms of headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression and anxiety and problems with vision, concentration, multi-tasking and speech and communication, are the result of him having suffered a MTBI (concussion) caused by the Accident.
 Moreover, I find that the plaintiff continues to suffer from post-concussion syndrome as a direct result of his Accident-related concussion.