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Low Impact Crashes and Objective Evidence of Injury

My collision was very minor – will the court accept that I was hurt?  What do I need to do to prove my injuries exist?

In a case released this week by the British Columbia Supreme Court, Justice Brown dismissed the claim of a plaintiff who alleged she suffered physical and psychological injuries after a relatively minor parking lot collision (Sandhu v Raveendran 2017 BCSC 499).  The impact itself was the subject of a great deal of trial time – essentially, two cars had pulled up next to each other in a tight spot in a parking lot.  The defendant driver didn’t see the plaintiff vehicle next to him, and lifted his foot off the brake.  His van eased backwards about two to three wheel turns.  He stopped the van when he heard a scraping noise, and realized there was a car next to him.

The plaintiff was a passenger in that car.  She alleged that, as a result of the incident, she suffered from back, neck, and shoulder pain.  There were some inconsistencies in her evidence – at trial, she testified that she was fully recovered from her injuries, but the report of her GP (dated only months before trial) indicated she was still suffering from an array of injuries.   Various clinical entries from prior to the impact (mentioning depression or aches and pains) were put to the plaintiff – she flatly denied receiving the treatments or mentioning the symptoms contained therein.

There were no collateral witnesses called to testify as to the impact the injuries had on the plaintiff.  Her family doctor had produced a report detailing her injuries, but agreed on cross-examination that he tended to accept whatever symptoms were presented to him as true.  He also agreed that he had not realized the impact had been so minor, and agreed that the injury potential of a low-speed impact would be much less than what was anticipated for impacts involving greater force.  As above, Justice Brown dismissed the plaintiff’s claim, finding that there was simply no evidence that she had suffered any injury:

[54]         Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.

[55]         The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.

[56]         In Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:

[18]      I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.

[19]      An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

[57]         In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.

As a final note, this case appears to be at odds with existing jurisprudence on low velocity impacts. For example, in the case Duda v Sekkon (2015 BCSC 2393), the court dismissed the defendant’s argument that there could be no injury, given the low impact collision:

[62]         Counsel for the defendants spent considerable time and effort making the submission that the two accidents did not cause significant motor vehicle damage. However, it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 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 goes on to point out that the presence and extent of injuries are determined on 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.