In personal injury litigation, a defence lawyer or insurance adjuster will, at times, argue that a low speed motor vehicle accident could not have caused any injury. The courts, however, have repeatedly rejected such proposition.
For instance, in the recent court decision of Kohlendorfer v. Northcott, 2017 ABQB 114, the defendants argued that the plaintiff’s alleged injuries could not been caused by the motor vehicle accident in question as the impact was so minor and at such a low speed. The plaintiff was driving a one-ton pick-up truck carrying 200-300 kilograms of cargo, when he was struck from behind by the defendant’s Honda Civic travelling at a speed of, at most, 13 kph at impact. The collision severity factor was no more than 3 kph. Repairs to the plaintiff’s truck were completed for under $700.00. Notwithstanding the finding that the plaintiff had willfully exaggerated his conditions and was not credible, the judge nonetheless accepted the plaintiff’s evidence that he was hurt as a result of the said collision. Consequently, for a whiplash injury lasting up to a year, the plaintiff was awarded general damages for pain and suffering in the sum of $23,000 and income loss in the sum of $41,786.
There are various factors, other than force of impact and speed, that will cause some individuals to be more susceptible to injury than others. The court in Jensen v. Thompson, 2002 ABQB 1066, specifically noted such factors in regard to rear-end collisions:
- Gender – Females have fewer protective neck muscles and are more susceptible than their male counterparts to injury to the neck, particularly when the muscles are already tight from tension and stress.
- Age – Post-injury recovery can be delayed or prolonged in older individuals given the fact that age-related changes in the spine begin in the second decade of life.
- Position of the head on impact – If the head is rotated at the time of the impact, one side takes most of the brunt and injury is more likely to occur than if the head was positioned straight ahead and protected by a properly positioned head rest.
- Vehicle design – Vehicles such as trucks with stiffer frames absorb less of the brunt of impact. Although there is less property damage to the vehicles, the jarring effect is transferred to the occupants to a greater degree.
- Pre-existing conditions – Conditions which may have been asymptomatic can be triggered.
- Lack of anticipation of the accident – If warned, individuals can protect themselves by leaning back against the head rest in a forward position.
As stated in Kohlendorfer v. Northcott, supra, every motor vehicle accident is different and the whole of the evidence must be considered to determine if injury did, in fact, occur. Accordingly, a plaintiff’s subjective complaints, as well as the objective evidence including treatment records, play an important role in proving one’s personal injury claim.