Personal injuries and buses: injured party awarded $1,000,000 after Greyhound bus accident.

As Vancouver upgrades its mass transit and increased traffic makes personal vehicles less desirable, we are likely to see more people riding mass transit and shared transportation, which is likely to increase the total amount of personal injuries arising from these modes of transportation. In a recent Supreme Court of British Columbia, a man was awarded approximately $1,000,000 after sustaining an injury on a Greyhound Bus that was found to be entirely the fault of the bus driver:

http://www.courts.gov.bc.ca/jdb-txt/sc/15/21/2015BCSC2147.htm

The plaintiff in the above case was awarded a settlement just shy of $1,000,000. The majority of his claim arose from his inability to return to work and Past Wage Losses. Much of the evidence in this case relied on the Plaintiff’s own “self-reporting” to doctors, as there was little objective evidence of injury. However, the judge accepted the majority of the Plaintiff’s evidence.

There a few issues specific to injuries involving mass transit and shared modes of transportation. A major one is insurance coverage. In situations where you have many people injured in one incident, issues with insurance coverage can arise. When an insurance policy does cover the total amounts of the claims against it not all parties may be able to actually receive the funds they are awarded. For example if an insurance policy limit is $2,000,000 but 4 plaintiffs are awarded $1,000,000 each, it’s not possible to pay out all the plaintiffs in full from that policy.

When, as in the above case, a Greyhound bus driver is at fault for the accident, insurance policies become less of an issue. Large bus and transit companies like Greyhound and Translink have large insurance policies and lots of assets. However, this might not be the  case with small bus services providing shuttle buses or “party buses”. Often these services are run by smaller companies with small insurance policies and few assets. While a large settlement is great, actually collecting that settlement may be another issue entirely.

Sharing the road with cyclists: are cyclists obligated to ride on the shoulder?

As bicycling has become a more common way to commute, the number of personal injury actions involving cyclists has increased. Significant confusion about where a cyclist is supposed to ride remains. It is well established that bicycles do not belong on sidewalks, but are they obligated to ride on the shoulder? The shoulder is the area to the right of the fog lines on a highway. It is an area that motor vehicles are not permitted to drive on.

Section 183 of the Motor Vehicle Act provides that cyclists must “ride as near as practicable to the right side of the highway“. The Court of Appeal of British Columbia determined whether the highway included the shoulder:

http://www.canlii.org/en/bc/bcca/doc/2014/2014bcca276/2014bcca276.pdf

This case involved a cyclist who was struck by a motor vehicle. The cyclist was in the far right section of the lane but was not using a readily available and paved shoulder. The Court of Appeal decided that the “highway“, for the purpose of interpreting Section 183, did include the shoulder and that cyclists had an obligation to ride on the shoulder where “practicable“.

Despite the above, a cyclist who is struck after choosing not to ride on the shoulder may still have a very strong personal injury case. Firstly, even in the above case, the driver of the motor vehicle was found to be 70% at fault. The fact the cyclist was riding on the road did not alleviate the driver’s duty to look out for cyclists. Additionally, there may be circumstances where it is unsafe to ride on the shoulder and not “practicable“. For example, the shoulder may be covered in gravel, unpaved, or obstructed by snow or other debris. As such, any injured cyclist should always consult with an experienced personal injury lawyer as they may have a better case than they presume.

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Not so fast: the City of Calgary may be stepping in to put a stop to Uber.

Uber, the popular ride sharing service, launched in Calgary on October 15, 2015 and was very popular with local residents. However, the City of Calgary’s official stance is that Uber is operating illegally and in contravention to several municipal bylaws. The City has applied to the courts for an injunction stopping all Uber drivers from operating. Failure to observe this potential injunction could result in jail time:

http://www.cbc.ca/m/touch/canada/calgary/story/1.3313216

It’s not a foregone conclusion that the City of Calgary will be successful in their application for an injunction. The City of Edmonton recently failed in its own application:

http://www.cbc.ca/news/canada/edmonton/uber-beats-city-s-injunction-effort-1.3020100

The City of Edmonton responded to this failure by proposing regulations for Uber drivers:

http://www.edmontonsun.com/2015/09/04/edmonton-unveils-bylaw-to-accommodate-uber

Under the City of Edmonton’s proposed new regulations, a separate class of drivers called “Private Transportation Providers” (“PTP”) would be created to accommodate Uber drivers. PTPs would still be forced to register with the city, but there would be no limit on the number of PTP licenses provided. The PTP class of drivers would have to meet the following criteria:

  • Possess a Class 1, 2, or 4 provincial driver’s licence
  • Undergo a criminal record check
  • Receive a one or two year licence from the city
  • Own a driver’s licence for two years or more
  • Have proper commercial insurance
  • Undergo a criminal record check
  • Have an annual mechanical inspection of their vehicle

The bylaw has yet to be passed, but many taxi drivers are not happy. During a recent debate on the issue, several taxi drivers expressed their protest by removing their shirts and shouting at city officials:

Taxi drivers plan next move in Edmonton Uber fight

However, not even these shirtless men could defeat the democratic process. The fate of the City of Edmonton’s proposed changes will be decided shortly via an upcoming vote. What does this mean for other cities, like Vancouver? If the City of Edmonton’s proposed legislation goes ahead, it could create a legal framework for other cities across Canada. The proposed criteria for Uber drivers do address many of the supposed safety concerns that officials in other cities and ICBC are using to justify their opposition to Uber.

hitch hiker

Seemingly minor whiplash injuries can develop into much larger problems.

“Whiplash”, which is commonly defined as neck and back pain caused by rapid and uncontrolled movement of the head, is one of the most common injuries people sustain in motor vehicle accidents. People often dismiss these injuries as minor or temporary. However, as in this Supreme Court of British Columbia case, whiplash injuries can often develop into chronic and disabling injuries that can impact personal and professional lives:

http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1532/2015bcsc1532.html

At the time of her motor vehicle accident the plaintiff in this case was a 46 year old certified general accountant. She sustained soft tissue injuries to her neck and back, which developed into a chronic pain syndrome with resulting psychological injuries. The courts ruled that not only was the plaintiff likely to continue experiencing physical pain, but her symptoms had escalated to the point they were likely to cause a “real and substantial possibility” of the plaintiff losing income in the future.

The plaintiff in this case was awarded $425,000 for future loss of earning capacity. When calculating how much this case was worth, the judge looked at the plaintiff’s earning salary before her injury and then used a mathematical approach based on an estimation of her ability to earn income after her injuries. This case illustrates how difficult it is to judge the value of a case early on. No one could have predicted that the plaintiff’s whiplash injury would have developed into such a serious issue. Had the plaintiff not sought proper legal advice or settled her case too early she may have been left with no compensation for future losses.

Car_accident,_Seattle,_1954

The courts put limits on ICBC’s right to Facebook material.

The courts have struggled with how to address social media in the context of a personal injury case. Although the information can be valuable and relevant, it is also private. They have ruled that opposing parties do have the right to access some social media material. However, that right is not without limits. In application to the Supreme Court of British Columbia, the courts further clarified their stance:

http://www.courts.gov.bc.ca/jdb-txt/sc/15/19/2015BCSC1983.htm

A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality…

The courts stressed the importance of proportionality when deciding whether or not to order a plaintiff to produce otherwise private social media content. This means there is a relation between the amount of content a claimant is expected to disclose and the size of their claim. A claimant bringing a relatively large and catastrophic claim would be expected to provide more access to their private information than a claimant bringing a smaller claim. This makes sense as a larger claim is likely to affect more parts of a claimant’s life and social media content is relevant to a discussion of the effect of an injury on a claimant’s life.

When negotiating with ICBC it is important to be mindful of your rights and obligations when disclosing otherwise private information. You should also be mindful of what is readily available to the public. ICBC does not need a court order to access and use information that is available to everyone.

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