A precedent setting court decision was rendered on Jan. 23, 2009. The case is Ostovic versus Foggin. The reasons for judgment, which include a description of the facts and the judge’s reasons for his decisions can be found on the British Columbia Supreme Court web site.
The decision delivers a blow to some common ICBC negotiation policies and tactics. There is the Low Vehicle Impact (LVI) policy, where they take the position that there can be no injury in a collision where the speed of the vehicles was low and the damage to the vehicles is minor. They will outright deny valid claims on that basis, without any attempt to negotiate fair compensation. For a more detailed description of this grossly unfair ICBC tactic, I refer you to my March 4, 2007, column.
They will also take the unfair position that there must be some “objective” signs of injury instead of believing what the injured victim says. Yes, the insurance company must be vigilant against liars, but the reality is that visible or “objective” signs of injury almost never exist in a minor crash. Stretches, microscopic tears and strains to muscles and ligaments when the head is whipped back and forth don’t show up on x-rays, MRIs or CT scans.
Another unfair position comes to play if a different person involved in the same collision was not injured. The argument is that if this other person wasn’t injured, you must not have been. This, of course, has absolutely no basis in medical science but has that air of sensibility that sometimes succeeds, particularly if the uninjured person was older or less physically fit than the person making the claim.
In truth, there can be very different medical consequences depending on a number of factors, some of which include: Was the person braced for impact? Was he looking straight ahead or to the side? Was he in the bullet vehicle or the target vehicle? Did he have a normally flexible or less flexible neck? ICBC argued these points at trial.
The Supreme Court justice who heard the case saw through the bunk. The injured person was not a fragile individual. He was very fit. He had been the Canadian cruiserweight kickboxing champion in 1992 and, at the time of the collision, he operated a mixed martial arts gym and worked part-time as a bouncer.
His name is Gabriel. It was your classic LVI collision. Gabriel’s car was rear-ended at a low speed. Damage to the offending vehicle’s bumper was estimated at just over $400. The offending driver didn’t suffer any injury at all. Gabriel didn’t suffer a serious injury. His symptoms were limited to soreness between the shoulder blades, neck stiffness and headaches.
He had 11 physiotherapy treatments. He didn’t have to miss any work. His symptoms were completely resolved within seven months of the collision. All Gabriel wanted was for ICBC to reimburse him the $15 user fees he had to pay for each of the physiotherapy treatments. Had ICBC been fair, the corporation would have forked out that $165. Gabriel may never have gone to see a lawyer to discover that he was entitled by law to be compensated for those months of soreness and the inconvenience of having to go to physiotherapy.
ICBC held to its LVI policy all the way and did not offer one red cent in settlement. The defence lawyer’s main argument was that the damage to the vehicles was so slight that the collision could not have caused Gabriel’s in- juries. The lack of “objective” evidence was pointedly argued.
Adding insult to injury, even though they had refused to help with paying for the physiotherapy treatments, they argued that Gabriel was the author of his own misfortune for not having gone to more! At the trial, Gabriel’s lawyer asked the court to award $7,500 for the “pain and suffering” element of Gabriel’s claim. That’s exactly what the court awarded. The court also threw in the $165 in physiotherapy expense.
Are you upset about our car insurance rates? ICBC is likely going to be paying more in costs to Gabriel than the court awarded as fair compensation. This is in addition to the money they paid their lawyer to defend the case, which would have been considerable. Have they learned their lesson, though? Hardly. It’s a cost of doing business.
The thousands of injured victims who give up without pursuing their rights more than make up for the butt-whooping they got in this case. This is not just a case of Gabriel standing up for his rights. In my view, it is more about his lawyer, John Cameron, who insisted that justice be done.
It takes a very principled lawyer to take on an LVI case. A lawyer is never properly compensated for the work it takes to bring these cases to trial. That, and there is always the chance that ICBC’s bunk arguments, like minor damage to vehicles means minor damage to the occupants, will convince a judge or a jury that there should be no recovery at all.
Is there an ICBC adjuster telling you that a lack of vehicle damage or “objective” evidence of injury means you weren’t injured? Are you being offered less than $7,500 when you are still suffering symptoms more than seven months after a crash? Print out a copy of this case and let the black and white words of Mr. Justice Savage do the talking.
Published February 1, 2009 in the Kelowna Capital News