ICBC Claims and Childcare Costs

In a recent Supreme Court of British Columbia decision, the courts confirmed that Child Care Costs could be claimed and are separate from claims for Loss of Housekeeping Capacity:

http://www.courts.gov.bc.ca/jdb-txt/sc/16/02/2016BCSC0265.htm

The plaintiff in this case was a young woman who shared childcare duties with her former partner. She was injured in two separate motor vehicle accidents. Among other injuries she suffered injuries to her hips, including: chronic synovitis, early degeneration, and a torn labrum; she was likely to require hip replacement surgery within 5 to 10 years and revision surgeries later on. The plaintiff had already been given a substantial award for Loss of Housekeeping Capacity of $112,000. The defence argued that this award would cover Child Care Costs, and no separate award for Child Care Costs was necessary. In distinguishing the 2 awards, the judge stated:

“On a similar basis, I consider the plaintiff is entitled to an award which compensates her for the future costs she will incur in caring for her children. It is not seriously disputed that she will need support to care for her children in the period prior to and immediately after her first hip replacement surgery. The defendants implicitly suggest that homemaking services will be sufficient. However, in my view, while homemaking services need to be accounted for to ensure that there is no duplication of services, certain of the services that the plaintiff will require relate solely to the care of her children and are in addition to the homemaking services she will require.”

The judge awarded the injured party $40,500 to compensate her for likely childcare costs. This case is important as it recognizes the economic costs of an inability to perform child care duties and the specific burden a parent has.

Self-Driving Cars: A Reality in Vancouver?

Vancouver City (the “City”) Councillor Geoff Meggs plans to table a council meeting motion this Tuesday to have the City investigate putting self-driving cars onto Vancouver roads:

http://vancouver.24hrs.ca/2016/02/18/speed-up-on-driverless-cars-meggs

However, the Province of British Columbia (the “Province”) Transportation Minister Todd Stone has stated that the City does not have jurisdiction to create a pilot project to test self-driving cars:

http://www.cbc.ca/news/canada/british-columbia/driverless-cars-bc-vancouver-1.3454762

In the event that self-driving cars do become a reality, it is likely that the Province and the City will put aside their differences and create a comprehensive set of laws and regulations (and likely accompanying fees) to accommodate the new technology, but how close is this technology to being a day to  day reality? Various companies have participated in pilot projects to develop and test self-driving cars, including: Google, Tesla, Audi, BMW, Honda, and Delphi. There are conflicting reports about just how safe self-driving cars are.

In June of 2015, Google stated that their self-driving cars, after over 6 years and 1.8 million miles of driving, had been involved in only 12 accidents, all of which were minor and caused by the human drivers of other vehicles:

http://www.forbes.com/sites/brookecrothers/2015/06/08/google-now-reporting-driverless-car-accidents/#19735bbe3d3f

However, a closer look at the data reveals that this may not be the whole story:

http://www.telegraph.co.uk/technology/google/12095898/Googles-driverless-cars-needed-hundreds-of-human-interventions-to-prevent-accidents-and-failures.html

Google has been forced to make hundreds of human interventions to prevent accidents. Other factors, such as the type of conditions in which these cars are driving in, may be important factors as well. For example, if the self-driving cars are logging their miles on familiar roads, in lighter weather conditions, or in low traffic areas, it would wildly skew data. Overall, it’s much easier to manufacture positive safety data using controlled conditions. A recent study out of the University of Michigan has found that, despite these less demanding testing conditions, self-driving cars are twice as likely to be involved in motor vehicle accidents:

Self-Driving Cars Are More Accident-Prone, Study Finds

Overall, many of the issues seem to arise from poor interaction between human drivers and self-driving vehicles:

http://www.nytimes.com/2015/09/02/technology/personaltech/google-says-its-not-the-driverless-cars-fault-its-other-drivers.html?_r=0

Humans often bend rules to avoid accidents, and their driving behaviours aren’t as calculated as their automated self-driving counterparts. This suggests that it may not be possible to slowly introduce self-driving cars onto the roads. Instead, we may have to wait until a large swath of self-driving cars can be introduced at once or existing vehicles can cheaply be altered to become self-driving.

Putting current safety concerns aside, it is likely that self-driving cars will become a reality at some point, as the technology matures. This creates serious concerns for people injured by self-driving cars. Most notably, who is legally responsible when they malfunction or a dispute over liability for an accident occurs. Currently, once the identity of a driver has been ascertained, an injured party can then sue that driver. A driver-less vehicle obviously has no driver, and suing the large corporate manufacturer of the vehicle is surely to be a daunting task.

The Transportation Minister of British Columbia refuses to change legislation to allow operation of Uber in Vancouver: states legislation already allows ride sharing services to operate?

In a strange turn of events, the Transportation Minister of British Columbia, Mr. Todd Stone, has stated that he will not be making any changes to the legislation concerning the potential licensing of ride sharing services, such as Uber. Mr. Stone has stated that, within a “matter of time”, he expects Uber to be fully operational within Vancouver and that existing legislative frameworks should accommodate Uber:

http://www.cbc.ca/news/canada/british-columbia/uber-canada-calls-concerns-misinformed-1.3414689

The above noted article, however, also cites previous statements from Mayor Gregor Robertson and Councillor Geoff Meggs that the current legislation is not set up to handle a ride sharing service. It would seem as though both the Provincial and Municipal levels of government are accusing the other of not making it possible for ride sharing services to operate. Mr. Stone’s current stance also seems in opposition to previous statements by him that Uber drivers would require taxi licenses to operate:

http://www.cbc.ca/news/canada/british-columbia/uber-vancouver-to-get-undercover-government-checks-to-enforce-taxi-regulations-1.2821811

Perhaps Mr. Stone is suggesting that it is up to the city to create a licensing scheme for individual Uber drivers. The city of Vancouver has a long history of severely limiting taxi license numbers in the face of growing demand. As such, it’s unlikely they will be providing individual licenses to Uber drivers on a large scale. Meanwhile, Uber themselves have stated that they believe no process exists for ride sharing companies to apply for proper licensing:

http://www.theglobeandmail.com/news/british-columbia/bc-rejects-uber-request-to-revise-licensing-regulations/article28332937/

Uber’s future in Vancouver seems very uncertain, with both the Provincial and Municipal levels of government pointing fingers at the other for being responsible for any restrictions on Uber’s ability to operate within Vancouver.

ICBC rate increases: the real culprit?

The typical insurance model is to collect premiums from insurance payers (A.K.A. insurees) and then invest those premiums. The profits from those investments are largely what is used to pay out insurance claims. In most jurisdictions, the residents have a variety of insurance companies to choose from. Theoretically, a competitive market ensures that insurees pay a competitive premium rate.

The model in British Columbia, however, works differently. Residents of British Columbia have one mandatory insurer for basic automobile insurance, a crown corporation known as the Insurance Corporation of British Columbia (“ICBC”), which was created in 1973 by the NDP government. Lately, the Provincial – and now Liberal government – of British Columbia (the “Province”), has used ICBC and other crown corporations as a source of revenue. The Province is in the midst of a 3 year plan to take 1.7 billion in revenue from ICBC by the end of the 2016/17 fiscal year:

http://www.vancouversun.com/business/Government+grabbing+cash+from+ICBC+Hydro+they+raise+rates+charges/9527548/story.html?__lsa=aa41-37dc

This is also not the first time that the Province has gone to the ICBC well. In 2010, the Province, over the course of the following 3 years, extracted $778 million in revenue from ICBC:

http://bc.ctvnews.ca/government-to-receive-778-million-in-icbc-surplus-1.488752

These amounts are in addition to already existing taxes; the Province already collects an additional 4.4% tax on ICBC premiums pursuant to the Insurance Premium Tax Act. Meanwhile, ICBC has been continuously raising premium rates, citing an ever increasing amount of personal injury claims. While ICBC is correct that the number of personal injury claims against ICBC has been steadily increasing, so has the population of BC as a whole. The growing population of BC, theoretically, should have offset a large proportion of these additional ICBC claims by providing a larger population from which to extract premiums.

 

Part 7 benefits and pre-existing injuries.

Part 7 benefits, also known as “No Fault” benefits, are benefits owed to parties injured in motor vehicle accidents in British Columbia. These benefits are payable regardless of who is at fault for a car accident, hence the moniker “No Fault” benefits. These benefits will cover a portion or all of various treatment expenses.

ICBC may attempt to use the presence of a pre-existing injuries as a justification for denying Part 7 benefits; the reasoning being that ICBC should only be responsible for injuries actually caused by a motor vehicle accident. However, it should be noted that there is a large difference between a pre-existing condition that contributes to an injury that later requires treatments and a pre-existing condition that is the sole reason for the treatment. Furthermore, the onus lies on ICBC to prove that “but for” the pre-existing condition, the treatments in question would not be required:

As per a recent Court of Appeal decision:

[67]         The judge concluded at para. 42 that ICBC had failed to prove that, but for the pre-existing condition, Mr. Kozhikhov would not have needed the treatments then claimed under Part 7.  He granted Mr. Kozhikhov summary judgment in the amount claimed of $10,863.86.

[68]         The judge was faced with conflicting medical evidence.  He assessed this evidence in his role as the trier of fact.  He then applied a legal standard (the “but for” test of causation) to the facts as he found them.  The judge’s finding cannot be traced to an error in his characterization of the legal standard.  Therefore, his findings are reviewable on the deferential standard of palpable and overriding error.

[69]         In my opinion, the judge’s findings were clearly open to him on application of the “but for” test of causation.  His findings of fact are well supported by the evidence.  ICBC has failed to identify a palpable and overriding error of fact, or any error of law, so it is not for this Court to intervene: Housen v. Nikolaisen, 2002 SCC 33.

http://www.courts.gov.bc.ca/jdb-txt/ca/15/05/2015BCCA0515.htm

This recent decision re-affirms an injured party’s right to Part 7 benefits despite a pre-existing condition. If ICBC wants to deny benefits, they must prove on a balance of probabilities, that the benefits would not be required if the pre-exiting condition did not exist. ICBC must also prove that the pre-existing condition would have resulted in the need for treatments in question regardless of the new accident related injury.