What is the duty to mitigate and how can that affect your claim personal injury claim?

The duty to mitigate was dealt with in a recent Supreme Court of British Columbia case:

http://www.courts.gov.bc.ca/jdb-txt/SC/14/22/2014BCSC2224.htm

This case dealt with a 57 year old construction worker who sustained various soft tissue and psychological injuries in a motor vehicle accident. His total award was reduced by 15% (on the major heads of damage). This may not seem like a lot but given that his total award was over $200,000, the plaintiff in this case lost out on over $30,000.

The duty to mitigate is the duty placed on all plaintiffs to make reasonable efforts to limit their own losses. In this specific case, the plaintiff’s doctors had recommended that he have physiotherapy treatments and attend counseling. The plaintiff had taken a few chiropractic treatments and a single counseling session but had made no effort to seek additional therapy of any kind. The presiding judge stated:

“The picture that emerges is one of a plaintiff who has taken virtually no personal responsibility for pursuing treatment or seeking to improve his physical, psychological and cognitive condition. I do not accept that he was unaware of the treatment recommendations. The fact is that he did seek some chiropractic treatment but it was sporadic and he did not follow up. Similarly, he did seek counselling from Dr. Weibelzahl but stopped after one session. His explanation that he was too tired to go is insufficient and there is no evidence that he sought alternate arrangements.

I am satisfied that Mr. Benson acted unreasonably by failing to pursue the treatment recommended by the medical professionals. I am also satisfied that his condition would have improved with proper treatment. On this point, each of Dr. Viljoen, Dr. Adrian and Dr. Learn testified to the benefit of early treatment. None however went so far as to suggest that earlier treatment would have cured Mr. Benson’s problems.”

In this case, attending a few extra treatments may have been enough to squash the defendant’s mitigation argument. Not only does attending proper treatment have the effect of evading any mitigation arguments but it can change the way the courts perceive your evidence as a whole; attending proper treatment can mean the difference in being seen as stoic or a “malingerer”. More importantly, it can also help you recover from your injuries.

physiotherapy 1

The importance of keeping your statements consistent.

In a recent Supreme Court of British Columbia case, inconsistent statements from the defendant led to the courts adopting the plaintiff’s account of events:

http://www.courts.gov.bc.ca/jdb-txt/SC/14/21/2014BCSC2193cor1.htm

This case involved a motor vehicle accident in an intersection. A northbound car was struck by a westbound car. At issue was the colour of the light as the cars entered the intersection.

This is a common issue in personal injury cases. Many car accidents occur in intersections. The colour of the traffic lights dictates who has the right of way. Unless witnesses or cameras were present at the scene of the accident, the courts are often forced to rely on the credibility of the parties to determine what colour the light actually was.

One of the easiest ways to destroy your own credibility is to give inconsistent statements. In this case, the defendant gave three separate statements: to ICBC, during their discovery, and at court. As a result his evidence was rejected in favour of the plaintiff’s.

An inconsistent statement is not always intentional either. It can be difficult to remember details and providing evidence is always a stressful process. Statements about seemingly meaningless and trivial details can come back to haunt you and destroy your case. Once again, this highlights the importance of seeking competent and timely legal advice.

testimony

How long should it take me to settle my case?

There is no simple answer to this question. Every case is different. Every plaintiff and injury arising a motor vehicle accident is going to be unique. No two cases are exactly alike.

Ideally, you should not settle your case until you have a long term picture of your injuries. Once you settle a case, you generally cannot go back and ask for more money. You do not want to be left in a situation where a seemingly small injury progresses into a disabling one; this is particularly worrisome for people in jobs with manual labour elements. Additionally, ICBC will generally pay out a lesser settlement earlier on. The simple reason is that they are not going to pay you for a long term injury or disability until a significant amount of proof has been provided towards that result and they will generally operate under the assumption that people will get better over time.

Obviously, there are competing interests here. Although a better settlement/award is preferable, it can often be best to have a slightly lesser amount of money earlier. For example it may be preferable to have $17,000 now as opposed to $20,000 two years from now. Economic constraints may also force injured parties to settle earlier. The best way to avoid this situation is to seek alternative sources of income (see my previous posting on this), including: TTD payments, disability payments, and EI payments. A loan, particularly one from a third party, should be a last resort. These typically have relatively high interest rates.

For more serious injuries, it may be necessary to bring a case to trial (or the eve of) in order to get a fair settlement. This is not a hard and fast rule, however. Various other factors such as policy limits should be taken into account. As such, it is always important to discuss your case with an experience personal injury lawyer. The unfortunate truth is that the legal process is generally not a quick one. An experienced lawyer will, however, be able to identify cases that are appropriate to settle early on in the legal and insurance process.

time

Can I sue even if I’m only involved in a “fender bender”?

The simple answer is yes. The courts have ruled conclusively on this issue:

http://www.canlii.org/en/bc/bcsc/doc/1993/1993canlii1318/1993canlii1318.html

”     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.

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.  The presence and extent of injuries are to be determined on the basis of evidence given in court.  Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process. “

In short, larger car accidents may be more likely to cause injuries, but that does not mean that even the smallest accident with no vehicle damage will not result in an injury. This has been confirmed my medical evidence as well:

http://www.ncbi.nlm.nih.gov/pubmed/9455663

This study stated that the lower threshold for injury was a velocity change of between 10 and 15km/hr. Any velocity changes at or above this limit could result in a “whiplash” type injury.

Another issue before the courts in situations such as these is that people who are not hurt will (theoretically) weed themselves out. The courts are only going to see people who are actually injured bringing personal injury claims. Therefore, although it may seem like every “low velocity impact” is resulting in an injury, in fact, the people who are not hurt are simply not bringing claims.

All of this does not mean that making a claim for a small accident is without issue. The judge will base their decision on the evidence as a whole. The credibility of the injured party, therefore, may be more important in cases involving little vehicle damage as there is no physical evidence of an accident. Additionally, ICBC may be less willing to settle with an injured party who was hurt in a “low velocity impact”. This stresses why it is important to speak with a lawyer as early as possible.

low velocity impact dent

What happens if I am injured in a hit and run?

A “hit and run” involves one or more drivers leaving the scene of an accident without providing their name and address. It is a crime in Canada to commit a hit and run. The punishment for this crime can be up to life in prison, depending on the circumstances and injuries to the parties involved.

A major issue here for the injured party is that you do not know who to sue for damages. This can be especially devastating for injured parties who are left unable to work or with huge medical bills.

However, just because you do not know the identity of the other driver that does not mean you cannot bring a lawsuit for, at least a portion of, your losses. You can sue ICBC directly if you are injured on a “highway” in British Columbia. However, the requirements to do so are more onerous:

  1. Firstly you have to make all reasonable efforts to identify the driver who has hit you. What is considered reasonable is a question of fact and dependent on the individual circumstances. It can be as simple as putting up signs in the area looking for witnesses and reporting the incident to the police, but it can also include much more; and
  2. There are also special notice requirements that must be given to ICBC. You must give ICBC written notice “as soon as reasonably practicable and in any event within 6 months after the accident that caused the bodily injury, death or property damage.”

Given the onerous requirements to bring a lawsuit when you do not know the identity of the other driver, it is especially important to talk to a personal injury lawyer as quickly as possible.

For the drivers who have fled the scene of an accident, another potential consequence, if you are caught, is having your ICBC insurance policy voided and having the plaintiff go directly after your personal/business assets. This, in most cases, will have negative consequences for the plaintiff as well. It’s always better to sue a fully insurance defendant. Insurance companies almost always have deeper and more liquid pockets.

Another issue for an injured party here is that basic unidentified motorist insurance provided by ICBC will only cover up to $200,000 of a claim, and, if you have suffered a serious injury, your claim may be limited to only a portion of your losses. This amount can be awarded in court or negotiated in a settlement outside of court. As always, I recommend consulting with and hiring a lawyer to ensure you get the best possible award. As previously, stated this is particularly important with hit and run cases that have extra requirements with subtle legal nuances. Failure to meet these requirements could bar you from making a claim.

hit and run accident

Is Uber coming to Vancouver? If so, what does that mean for the personal injury world?

What is Uber?

Uber is a ride sharing service based out of San Fancisco. Their business model is to use a smart phone app to put people seeking rides in touch with drivers. The app allows customers to track where their ride is.

What are the Benefits?

Let’s face it, catching a cab in Vancouver can be an absolute nightmare. There simply are not enough of them, and the city refuses to issue more licenses. Every time the city does try, they are hit with a wave of opposition from the people who do currently own the licenses, and have paid upwards of $800,000 for them. The simple fact of the matter is that Vancouver has rapidly expanding population, and the number of licenses has not kept up with this demand. Additionally, current bylaws generally prevent taxis from picking up customers outside their city of origin. For example, a cab from Surrey can drive someone into Vancouver but cannot pick a customer up once downtown. They license generally limit them to picking up clients in their city of origin.

Are things really that bad in Vancouver. Yes, Vancouver has some of the priciest and least available taxis in the Canada, and possibly the lowest number of taxis per capita in all of North America:

http://bc.ctvnews.ca/report-says-vancouver-has-fewer-cabs-pricier-rides-than-other-cities-1.1972627

What are the Risks of Uber?

Beyond the inherent risks that go along with getting into a car with a somewhat random person, ICBC has stated they will only insure Uber drivers if they meet a list of criteria, which are not possible to attain right now (the driver would need a taxi/limousine license):

http://www.icbc.com/FAQ/Pages/insurance.aspx

What this means is that if the Uber driver is at fault, ICBC will not cover them. This also includes personal injury cases brought by their customers. When riding as a passenger, the person who causes the accident is liable any injury to their passengers.

Alternatives?

There are alternatives. Firstly, some kind of private insurance arrangement could be had. Yes, there are other insurance companies. The issue is that the government has legislated that all residents of BC must get ICBC for their basic insurance. Perhaps, Uber, as a commercial company, could find a way to work around the ICBC scheme.

You could also go after the assets of the driver and potentially Uber themselves. That being said what kind of assets do you expect an Uber driver to have. Well, they have a car…probably.

Quite frankly, I do not see Uber launching in Vancouver until they have worked out their insurance issues. The risks are just too large.

Cabs

Who are the courts going to believe?

When a personal injury case goes to court, the amount of an award will be dictated largely on who the courts find more credible. In cases involving motor vehicle accidents, the issue of credibility can be particularly important to several live issues, including: who was responsible for the accident; to what extent was the plaintiff injured; and whose medical experts are more credible.

The issue of credibility is complicated. Merely because you think you are telling the truth, that does not make you credible. The issue of credibility was dealt with in a recent Supreme Court of British Columbia case, when the judge was left with the task of weighing the medical evidence provided by the injured party vs the evidence provided by ICBC:

http://www.courts.gov.bc.ca/jdb-txt/SC/14/20/2014BCSC2050.htm

The courts will take into account the many factors when assessing the value of a witness’s testimony, including:

  1. The ability and opportunity to actually observe events;
  2. The firmness of their memory;
  3. The ability of a witness to resist the influence of interest to modify their recollection;
  4. Whether the witness’s evidence harmonizes with other evidence;
  5. Whether the witness changes their evidence;
  6. Whether the witness’s evidence seems unreasonable, unlikely, or impossible;
  7. The demeanour of the witness; and
  8. Whether the witness has a motivation to lie.

From the perspective of a person who has been injured in a motor vehicle accident, the best thing you can do is speak to a lawyer right away. The lawyer will be able to communicate with ICBC on your behalf. This will ensure that you do not accidentally give a statement that can be used against you. A lawyer working on a contingency fee will also be able to help you fund your case and be able to recommend experienced medical experts.

Additionally, you should seek medical attention immediately. Not only will this give you the best chance of recovering from your injuries, but it will build evidence that will be able to help you get a fair settlement later on.

Judge