Who is at fault when a cyclist passes a vehicle on the right and an accident ensues?

In British Columbia, generally vehicles that pass other vehicles on the right are found partially or entirely at fault for ensuing motor vehicle accidents. There are exceptions to this rule. For example, when a vehicle is turning left, you may pass it on its right. This brings up the interesting case of cyclists. Cyclists are considered vehicles and must obey the rules of the road. However, cyclists also generally ride to the right of motor vehicles outside of regular car lanes.

This leads to many situations where a cyclist could be held at fault for an accident merely for being to the right of a motor vehicle. Despite the law being clear on this, the courts have thankfully decided to take a more nuanced approach:

http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1407/2016bcsc1407.pdf

Here, a cyclist collided with a car that was making a left turn in front of it. The cyclist was not in a marked bike lane but was in a shoulder frequented by cyclists. The defendant argued that the cyclist was at fault. The defendant was making a left turn in front of traffic going the opposite way. The opposite traffic was stopped for congestion, and the plaintiff bicyclist was passing this traffic on its right.

Although there was no distinct bicycle lane, this road was commonly frequented by bicyclists and had warning signs that bicyclist and pedestrians frequented the area. The judge stated:

“Mr. Ilett did not fail to take reasonable care for his own safety. Cyclists frequently rode on the shoulder at the Intersection and many were doing so that day. Mr. Ilett was visible to Ms. Mattina for a significant distance prior to the Intersection. There were no signals requiring northbound traffic on Admirals to stop. Although Mr. Ilett passed the slowly moving and stopped lane of traffic which was on his left while he rode on the shoulder, it was commonplace for cyclists to do so.

As a result, Ms. Buckley is entirely responsible for Mr. Ilett’s injuries.”

This case illustrates the ongoing conflict between cyclists and motorists on the streets of British Columbia. It also illustrates that as the number of cyclists on the roads increases in volume, motorists must take extra precautions to avoid injuring them.

Recent University Graduate Awarded $1,233,105.91 in Personal Injury Case Following Head Injury.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0015.htm

In what can only be described as a tragic case, the victim of a motor vehicle accident was awarded a large settlement to compensate them for injuries and damages. During the accident, the plaintiff hit his head with significant force. He suffered a closed head injury and likely mild traumatic brain injury. The plaintiff had been riding a motorcycle. He stopped at a red light and was hit forcefully by a pickup truck from behind. The force of this impact was so severe that the plaintiff cracked several teeth when his skull and face struck the inside of his own helmet and his motorcycle was  embedded into the front of the truck.

At the time of his injury, the plaintiff was 28 years old and had recently graduated from the University of British Columbia with a degree in Kinesiology. He had been working as a firefighter but had aspirations of becoming a police officer. Injuries that the plaintiff sustained in the accident were likely to make this impossible. Prior to the accident, the plaintiff’s role involved rappelling in and out of forest fires. After the accident, the plaintiff could not hold down a security job.

Of interest here, was that the plaintiff had no certainty in terms of his career path and had not taken any concrete steps towards his goal of becoming a police officer. The judge ruled that even though this was the case, the plaintiff had established that he “would have applied for and obtained full time employment, likely in the fitness or recreation field.” The judge also ruled that the plaintiff was still capable of some kinds of employment but could not do “shift work” or work that requires “heavy physical requirements“.

Despite the plaintiff’s very general assessment of his future possibilities, the plaintiff was awarded $850,000.00 for Loss of Earning Capacity. This illustrates that despite uncertainty or only partial impairment a plaintiff can still be awarded a substantial claim to compensate them for a tragic injury.

 

 

 

Another ICBC rate hike coming?

http://www.cbc.ca/news/canada/british-columbia/icbc-wants-to-hike-basic-rates-1.3735758

ICBC is asking or a 4.9% increase in premiums. Last year rates were raised 5.5%. ICBC is citing a rising number of claims and increased legal costs as the reason for this hike.

As a lawyer, with an admittedly biased opinion on the matter, my position has always been that claims and legal costs are related to ICBC’s own behaviour and desire to litigate files. In other words, if ICBC were to make better offers earlier, lawyers would settle files earlier and people would be less likely to hire lawyers in the first place. ICBC in an attempt to drive down settlements has been making lower offers. Unintended effects of that policy were an increase in lawyer retention rates and litigation expenses.

ICBC has also cited increasing vehicle repair costs as another reason for the proposed rate hike:

http://www.icbc.com/autoplan/costs/Pages/rate-pressures.aspx

Although, total number of motor vehicle accidents may be increasing, the rate per capita should not be. As the population of British Columbia grows, you would expect there to be more accidents in proportion with population growth. However, the costs of repairing vehicles and added injury claims due to population growth should be offset by proportionally more people paying insurance to ICBC. This does not seem to be the case, which suggests that the shortfalls may be the result of ICBC’s own operation.

Courts decide that whiplash injury worth $1,190,562.70

http://www.courts.gov.bc.ca/jdb-txt/sc/16/14/2016BCSC1486.htm#_Toc458696781

This case involved a plaintiff that was injured in two separate motor vehicle accidents, in which he’d suffered whiplash type injuries. Complicating factors here included the plaintiff’s pre-existing degenerative changes to his neck. At the time of trial, the plaintiff was 40, but he was in his mid 30s at the time of the motor vehicle accidents in question.

Following these motor vehicle accidents, the plaintiff’s injuries progressed to the point that his hands shook and his legs felt weak. His symptoms were relieved by surgery, but never totally disappeared.

Prior to these motor vehicle accidents, the plaintiff had been an active person who regularly participated in demanding activities, like rock climbing. He did have some pre-existing neck pain, but it was not of a disabling nature. Before these accidents, the plaintiff was also employed as a tax auditor for the Canada Revenue Agency. His job involved a mixed role of office work and visiting the homes and offices of those under audit. His job required some physical activity, such as carrying file boxes. He was also often expected to work in small and awkward spaces provided by those he was auditing.

After the accident, and despite having surgery, the plaintiff was unable to return to his previous hobby activities. He had returned to work but in a limited capacity and part-time capacity.

Of special note in this case was an opinion from a medical expert stating that the plaintiff’s pre-existing neck conditions had pre-exposed him to a worse injury from whiplash in a motor vehicle collision:

 On cross-examination, Dr. Wong agreed that an individual with cervical spondylosis is more susceptible to injury due to whiplash. Whiplash causes hyperflexion and hyperextension of the neck which can disrupt the muscles and ligaments supporting the spinal column. Whiplash can also accelerate degenerative disc disorder by damaging and weakening the outer part of a disc and making it susceptible to herniation and bulge. Nerves can become pinched or irritated as a result.

This case, once again, illustrates the profound effect a whiplash injury can have on a person and the importance of getting proper legal advice.

Has Pokemon Go resulted in injuries affecting you or your loved ones?

Reports of people injured in Pokemon Go incidents, some genuine and some fabricated, are flooding the internet. In a high profile incident, a man in Victoria, Australia crashed into a school:

http://www.huffingtonpost.com.au/2016/07/28/driver-crashes-car-into-school-because-of-pokemon-go/

Local police released the following statement on their Facebook account:

ONIX-CEPTABLE – POKÉMON GO NO NO

Casey Highway Patrol is investigating after a motorist made an unplanned PokéStop late yesterday when he crashed his car into a school in Berwick.

Police have been told the local man was trying to capture a creature from the Pokémon Go application when he appears to have lost control on Ridgemont Drive about 6.50pm.

It is understood the Berwick motorist was travelling north and negotiating a roundabout when he lost control at Flowerfield Close.

He ran off the road through a fence and into a school portable building.

Luckily no one was injured.

The 19-year-old did not level up nor collect any stardust or candies only debris from the crash.

Any PokéBalls, eggs or potions the driver may have had remaining only attracted police leaving the wild Pokémon for another day.

The driver furnished a negative preliminary breath test however it is expected he will be charged on summons in relation to careless driving.

Leading Senior Constable Julie-Anne Newman
Media Officer
51531

Luckily no on was hurt in this incident, but it illustrates the danger of operating a motor vehicle while distracted. Like texting, Pokemon Go diverts a driver’s attention away from the road.

This story out of Pittsburgh illustrates the danger Pokemon Go can be to pedestrians:

http://www.wtae.com/news/teenager-hit-by-car-blames-pokemon-go/40694020

Here a pedestrian, who had become distracted by the game, ventured unsafely across a street and was struck by a motor vehicle.

Science fiction envisioned enhanced reality tools that would provide us with hyper vigilance and increased information about the world around us. The reality of, so far, seems to be differing significantly.

How much is whiplash worth: Judge states that she must “exercise caution” during whiplash case.

http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1138/2016bcsc1138.pdf

In the above noted case, a plaintiff was awarded considerably less than she had claimed for a whiplash injury. The judge, in deciding how much this whiplash case was worth, stated that she would have to “exercise caution” in assessing this claim. This injury, like in many whiplash claims, was not objective. As I’ve stated in previous posts, an objective injury is an injury that is physically observable in some way. Examples of objective injuries are visible cuts and bruises or x-rays showing broken bones. Although you can dispute how the plaintiff got those injuries; you cannot dispute that they exist. Soft tissue injuries, which are common in whiplash events, on the other hand, are not usually observable and you can dispute that they actually exist.

In coming to their final decision, judges will typically put more weight on the credibility of the plaintiff in cases without objective injuries. In this particular case, the judge cited problems with the plaintiff’s credibility, as she had given inconsistent statements. Additionally, the judge also found an adverse inference against the plaintiff, as the plaintiff had not called their family doctor to provide evidence.

This case illustrates many of the common pitfalls in whiplash claims.

Injured party awarded $177,177.63 for “whiplash associated disorder”.

http://www.courts.gov.bc.ca/jdb-txt/sc/16/11/2016BCSC1162.htm

After suffering injuries in a motor vehicle accident, over 5 years ago, a plaintiff was awarded $177,177.63 in damages. An orthopaedic expert she hired diagnosed her with a “whiplash associated disorder” and stated that although she was likely to see improvement in her condition, her injuries may never fully resolve.

This case was complicated by a few issues and required competent and experienced counsel to effectively resolve. The plaintiff in this case had a medical history that included some pre-existing neck and back pain. The plaintiff had also actually increased her working hours after the accident. Despite this, the plaintiff was still able to secure a sizeable award, not only for non-pecuniary damages (AKA pain and suffering) but also for loss of future earnings. The judge relied on evidence from the plaintiff’s experts – including both orthopaedic surgeons and functional capacity experts hired by the plaintiff – to come to the conclusion that there was a “real and substantial possibility” that the plaintiff was likely to lose income in the future.

This case once again illustrates how whiplash injuries can escalate into injuries that can have a profound affect on the life of an injured party. This case also illustrates the difficulty in judging the worth of a whiplash case and the importance of hiring proper representation.