Evasive Actions: personal injury claims without actual collisions.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1217.htm

This recent Supreme Court of British Columbia case dealt with a motorcyclist who was force to take evasive action while entering an intersection. The motorcyclist had the right of way, and another vehicle entered the intersection after stopping at a stop sign to the right of the motorcyclist. The motorcyclist was able to avoid striking the other vehicle, but ultimately lost control of their motorcycle and suffered a significant injury while striking the ground. The courts found that the motorcyclist’s actions had been prudent in the circumstances and that they were still entitled to make a claim against the other driver, despite the fact that no collision had occurred between the two motor vehicles.

In coming to this conclusion, the judge applied a couple important legal principles:

  1. When avoiding a hazard ahead, a driver is not expected to make the perfect decision, only a decision that is reasonable in the circumstances. The existence of a better course of action does not result in a finding of negligence.
  2. It is up to the driver who has created the initial hazard to demonstrate that the other driver could have reasonably avoided the hazard.

In this case had the defendant been able to show that the plaintiff’s rate of speed had contributed to or caused their fall then the judge may have made a different finding on liability. However, neither side presented evidence to show that the motorcyclist had been speeding. This case once again demonstrates the importance of hiring legal counsel, and why doing so prior to speaking with ICBC can be important.

Construction worker given $430,000 award for soft-tissue injuries sustained in car accident.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0577.htm

The injured party was a construction worker and father of 4 children. His work primarily focused on residential renovations and building and servicing green houses at big box stores. The plaintiff was fifty years old at the time of trial and had been injured in what the courts described as a “violent” rear end type motor vehicle accident. Although the plaintiff continued to work after the accident, he was limited in what roles he could perform and how long he could work for, largely due to ongoing neck and chronic neck pain after the accident.

In this case the lawyers for the defence tried to make the argument that since the plaintiff had been to acupuncture treatments for neck and shoulder issues prior to the accident, he must have been suffering from soft-tissue injuries before the accident that were not caused by the accident. Fortunately, the judge found the plaintiff to be credible and dismissed the defence’s argument, stating:

“Receiving an acupuncture treatment (or a massage) for the relief of soreness or temporary muscle pain arising from long hours of driving or physically demanding activities is qualitatively different from attending an acupuncturist as a result of an injury on the recommendation of one’s general practitioner.”

This was a very astute observation by the judge and was based on medical expert evidence from an expert in occupational medicine who stated “people go for massages all the time when they are working at physical jobs or go to their gardens and they do a bunch of digging”, but it “does not mean they have an ongoing back pain disability”.

Student awarded $150,000 for Future Income Loss.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0550.htm

This case involved a plaintiff who was injured in 3 separate motor vehicle accidents. At the time of their first accident, the plaintiff was a bank teller who was pursuing a Bachelor’s Degree in Financial Services and Administration at Douglas College.

The plaintiff’s award for Future Income Losses was broken down into 2 components:

  1. $50,000.00 for a delay in her education and training; and
  2. $100,000.00 for loss of Future Earning Capacity.

The plaintiff was given these awards despite, at the time of trial, having the ability to work full time. The $50,000.00 was meant to compensate the plaintiff for any delays in her education caused by her inability to pursue career and educational goals with the same vigor had the car accidents not occurred. For example, if the plaintiff was not able to take as many courses or not pursue promotions or new opportunities, this award would compensate her.

The second part of the award, which consisted of $100,000 for Loss of Future Earning Capacity, was meant to compensate the plaintiff for future contingencies, such as time off work, early retirement, and an inability to pursue overtime. This figure of $100,000 was based loosely on her salary at the time, and she was given compensation for approximately 2 years of her current salary.

This case once again illustrates that despite uncertainty as to career paths, a young person or a students may still be entitled to compensation for future losses.

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.

Whiplash: what kind of compensation are you entitled to?

As per this recent example, awards for whiplash injuries can be very high:

http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc1122/2016bcsc1122.pdf

The plaintiff in this action was awarded over $500,000. She retained a very knowledgeable expert in Physical Medicine and Rehabilitation, Dr. Heather Finlayson. Dr. Finlayson, in her medical report, stated that whiplash injuries involve “rapid movements of the head and neck forwards and backwards and/or side-to-side and can cause “high-velocity stretch of muscles and their attachments, such that the muscles go into painful spasm“. Whiplash type injuries can lead to various chronic injuries – in this case, myofascial pain syndrome.

What this case illustrates is that, when assessing damages, it is not necessarily the mechanism of the injury that is important but the effect on the injured party. In other words, no two whiplash cases are the same and every case must be assessed on its individual merits. For example, two people involved in the same accident might both suffer whiplash-type injuries. One person may heal very quickly and the injury may have relatively little impact on their lives. As a result, the award for their damages is likely to be relatively low. Another person might suffer far more long term and disabling injuries, resulting in severe limitations to their professional and personal lives. They would likely be entitled to a relatively high award.