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.

What is Whiplash?

The modern definition of whiplash, as it is used by various legal and medical bodies in British Columbia, traces its origins back to a study commissioned by the Quebec Automobile Insurance Society in 1989. The "Quebec Task Force" ("QTF"), which was the body commissioned with completing this report, provided an in depth report on whiplash, which included a "Whiplash Associated Disorder" ("WAD") grading scale, which remains in use today.

The QTF completed their report at a time when much less was known about soft-tissue injuries and rehabilitation. As such, much of their report is no longer seen as valid, particularly the parts that relate to recovery time. The reality of long-term and even permanent soft tissue injuries arising from whiplash injuries is far more accepted now.

However, the grading scale, which is based on a score of 0-4, remains heavily in use. For example, the Insurance Corporation of British Columbia references this scale on their CL-19 forms, which are routinely provided to treating doctors when a personal injury claim is made. The British Columbia Chiropractors Association has similarly adopted this scale. The WAD scale involves placing whiplash injuries into 5 separate categories:

1. Grade 0 WAD: No complaint about the neck and no physical sign of injury
2. Grade 1 WAD: Neck complaint of pain, stiffness or tenderness only and no physical sign of injury
3. Grade 2 WAD: Neck complaint and muskuloskeletal sign(s) of injury
4. Grade 3 WAD: Neck complaint and neurological sign(s) of injury
5. Grade 4 WAD: Neck complaint and a fracture or dislocation

Of note, is that as you go up the grading scale, the descriptions of the injuries become less subjective and more objective. As previously discussed diagnosing a subjective injury largely involves relying on complaints made by the injured party, whereas objective injuries are typically physically observable, such as broken bones. As, the vast majority of personal injury whiplash cases involve primarily subjective injuries, hiring a competent lawyer to properly frame these cases is extremely important.

Injured party awarded $80,000 for a partial disability affecting her ability to work in the family restaurant.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/11/2017BCSC1103.htm

The issue of wage losses is complicated and becomes more complicated when dealing with self-employed individuals with variable incomes. In this case, a 42 year old woman suffered right ankle and whiplash like injuries to her neck/upper back after her car was struck by another vehicle that was exiting a driveway. This plaintiff was left with ongoing and chronic pain. Additionally, the plaintiff had gone on to develop symptoms of thoracic outlet syndrome and psychological injury, including depression. 

The plaintiff in this case was not given an award for past wage losses, but was given an award of $80,000 for loss of future earning capacity. Once again, the capital asset approach was used. The capital asset approach provided the plaintiff with an award despite the fact that her future wage losses were not capable of being quantified. The plaintiff, in this case, ran an Italian restaurant with her family. The courts acknowledged that despite the fact that she was unable to prove that she had suffered any past wage losses, it was probably that she would suffer from an impairment that would affect her ability to earn income going forward. 

This case once again illustrates the difference between the two ways in which future losses can be assessed: the earnings approach and the capital asset approach. The earnings approach relies on actual calculations of wage loss and requires the use of mathematical formulas and relatively certain quantification of wages. The capital asset approach is a much looser approach, which relies on hypothetical and more general guess work. Once again, merely because there is uncertainty about future wages, that doesn't mean you can't be awarded fair compensation for them. 

Claims for speculative business losses in personal injury claims.

This is an issue that arises somewhat of often in my practice. Can an injured party make a claim for a small business that they have not actually started yet. This issue was dealt with in this recent Supreme Court of British Columbia case:

http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0644.htm

The plaintiff in this case was a 59 year old woman who had hoped to start her own cosmetics business. She had been injured in a motor  vehicle accident and was claiming that these injuries were preventing her from running a successful multi-million dollar cosmetics business.

The plaintiff in this action had taken a number of steps towards starting their business, including:

1. Incorporating their business;
2. Acquiring stock;
3. Labeling and branding her stock;
4. Getting approval for sale from Health Canada; and
5. Applying for trademarks.

Approximately 2 years prior to their injury the plaintiff held a private seminar, where she successfully sold various beauty products. Her stated goal was to hire a team of salespeople to sell her products via future private seminars.  The judge, unfortunately for the plaintiff, found various deficiencies in the plaintiff's claim, including that:  her goal of having seminars with a sales team was vague; the plaintiff's evidence about market conditions was inadequate; the plaintiff's previous lack of success with this business should be taken into consideration;  the plaintiff had not devouted full time hours to her business prior to her injury; and the plaintiff, although partially, was not totally disabled from running her business as a result of her injuries.

As a result, the plaintiff was not given an award for past nor future loss of earnings for her proposed business. She was, however, given an award of $100,000 for loss of her "entrepreneurial spirit". This amount was considerably less than the several million dollar claim that the plaintiff was advancing for loss of profits from her proposed cosmetics business. 

This case illustrates the difficulty that many plaintiffs will face when making a claim for income losses, particularly when there is a high degree of uncertainty concerning their potential earnings. 

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. 

Facebook profile leads to finding of perjury in personal injury case.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0431.htm

In this recent Supreme Court of British Columbia personal injury case, the lawyer for the plaintiff was able to draw a connection between the defendant driver and a supposedly independent witness.

This case involved a rear end collision, which typically results in a presumption of fault against the following car that has struck the  vehicle in front. This presumption can be overturned, if the front car has themselves done something that contributed to the accident. For example, stopping suddenly in the middle of the road for no reason. 

The witness, in this case, initially testified that they saw the car accident in question and that the plaintiff had indeed stopped suddenly for no reason. The witness stated that they did not know the defendant and had responded to a notice looking for witnesses. The counsel for the plaintiff, through solid sleuthing, was able to find a Facebook connection between the defendant and the witness. The witness ultimately admitted his perjury.

The odd thing about this case was that the evidence already established that the plaintiff had stopped suddenly without reason. The courts found the plaintiff 15% liable for the accident as a result. Had the defendant not concocted their story, the finding of liability against the plaintiff likely would have been greater, as more weight could have been given to the defendant's evidence. Prior to the trial, ICBC had breached the defendant and denied the defendant insurance coverage.  Perhaps this created more incentive for the defendant to defend their case, but that was no excuse for committing perjury. 

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.