May 11th, 2012
In this passing on the right bicycle case (Ormiston v. I.C.B.C.,2012 BCSC 665), the injury claimant fell from his bicycle while descending a steep hill along Lindholm Road in the District of Metchosin near Victoria, BC. He sustained serious injuries for which he seeks compensation. The Court only decided on the issue of liability and the issue of compensation was left to be dealt with after this decision.
The injury claimant alleged that he was forced into a concrete abutment by a car which veered suddenly into his path just as he was passing it, causing him to be ejected from his bicycle over the abutment and down a ravine onto rocks below. The owner and driver of the car were never identified.
The Judge accepted that the unidentified driver was negligent as he was almost stopped at the centre line when he made a sudden veering motion that took his car over the fog line onto the shoulder. The Judge however also found that the injury claimant should also bear some responsibility for the accident, given the cases which suggest that a cyclist bears responsibility for a collision where: (a) The road is one lane in the direction of travel and he/she passes on the right at or near an intersection; and (b) The cyclist is alerted to actions of a lead vehicle, such as slowing, but chooses to pass regardless.
Given the provisions of the Negligence Act, R.S.B.C. 1996, c. 333 and the facts found by the Judge, the hit and run driver was found to bear the greater liability of 70% and the claimant cyclist 30%.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A., LL.B.
Tags: At Fault, Car Accident Claim, ICBC, ICBC Injury claim, ICBC Statement, Legal Causation, Negligence
Posted in ICBC Bicycle Accidents, ICBC Insurance Claims | No Comments »
May 8th, 2012
When the Insurance Corporation of British Columbia decides to deny a personal injury claim after a car accident, often the only recourse is to file a lawsuit. Depending on the level of court, there are rules that control the court proceeding and claimant lawyer’s best options are usually assisted by the use of the Rules of Court.
In this post I will outline three Supreme Court rules that personal injury claimants and their lawyers can use to put their best foot forward.
first, getting the insurance policy of the at fault driver. Rule 7-1 (3) allows a claimant in a car accident to find out the policy limits on the other drivers insurance policy. As the rule states,
(3) A party must include in the party’s list of documents any insurance policy under which an insurer may be liable
(a) to satisfy the whole or any part of a judgment granted in the action, or
(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.
Second, getting documents from ICBC . Rule 7-1(1) requires the ICBC lawyer to list and provide documents that are directly relevant. as the rules state,
(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,
(a) prepare a list of documents in Form 22 that lists
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial, and
(b) serve the list on all parties of record.
Third, Setting a date for the personal injury trial. Rule 12-1 outlines how to set a trial.
For my information about personal injury law in British Columbia take a look at my video about the purpose of personal injury law.
Best plan is to call a lawyer for a free legal consultation before you consider filing a lawsuit. Posted by personal injury lawyer Mr. Renn A. Holness, B.A., LL.B.
Tags: Accident Insurance Claim, British Columbia Lawyers, Car Accident Claim, ICBC, ICBC Injury claim, ICBC Lawyers, Insurance Claim, New Civil Court Rules
Posted in British Columbia Lawyers, Car Accident Lawyer, How Much Money Will I Get?, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Lawyers, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Settlements, ICBC Truck Accident, Insurance Claim in British Columbia, Legal Advice, Motor Vehicle Accidents, Personal Injury Lawyers BC, Vancouver Personal Injury Lawyer | No Comments »
May 1st, 2012
Personal injury claimants in British Columbia should be aware of how the Courts deal with photos and videos kept at their Facebook accounts. As a personal injury lawyer in Vancouver since 1995 I have had to address privacy concerns for my personal injury clients in almost every case. With the evolution of social media, insurance companies know more than ever about injury claimant’s personal life and will often get photos and even videos of the claimant before they have a chance to change their privacy settings.
There are currently very few court cases dealing with Facebook in the context of personal injury claims in British Columbia. I did recently review a case in which the court refused to order disclosure of a claimants Facebook account information. However, in the case Fric v. Gershman, 2012 BCSC 614, the Court came to the opposite conclusion.
In the Fric case the litigant was claiming for damages resulting from injuries suffered in a motor vehicle accident in British Columbia. At the time of the accident, the claimant was a first year law student at the University of Victoria. The claimant’s vehicle was rear-ended which caused her injuries including chronic severe headaches, injury and pain to the upper back, and neck pain. After the accident, despite her injury, the claimant engaged in various activities including trips to Thailand, Fiji, Australia, Montana, Florida, California, Seattle, Portland, and Cuba.
The claimant had some 890 Facebook “friends” who did have access to the private content of the Facebook profile. The Facebook network was used by the claimant for both personal and professional interactions. Her Facebook profile stored 759 digital photographs and one video and the claimant did not disclose the precise nature or subject matter of the Facebook photographs or video. In addition, the claimant was in possession of approximately 12,000 photographs. It was not clear on the evidence whether those photographs were stored electronically or in an old-fashioned album.
Despite her injury the claimant continued to engage in sports and other physical activities since the accident, including hiking, scuba diving and wakeboarding albeit with some pain or discomfort.
After considering many case authorities, the Court concluded that some of the claimant’s photographs, including those held on the private Facebook profile, must be disclosed. In making the order Master Bouck stated, Read the rest of this entry »
Tags: Car Accident Claim, Document Discovery, Facebook disclosure, ICBC, ICBC Injury claim, New Civil Court Rules
Posted in Back Pain, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No Comments »
April 3rd, 2012
I have been a personal injury lawyer representing injury claimants against ICBC since 1995 in BC and have helped countless claimants settle their injury claims from my law office in Vancouver. Finding a lawyer can be a daunting task and most people that call my office are concerned about the cost of a lawyer. Here are three things to consider before hiring a personal injury lawyer:
1. Do you have confidence in the personal injury lawyer? Is he or she a member in good standing with the BC Bar and do they have the work experience to benefit your case?
2. Do you need a lawyer? If your injury is trivial and does not interfer with your social, recreational, or work life then typically you do not need a lawyer.
3. How much should you pay a personal injury lawyer? The Law Society of British Columbia regulates lawyers in BC and has set limits on what lawyers can charge. Without court order a personal injury lawyer cannot receive more than 40% of a settlement or court award if the lawyer is being paid on a percentage. If you pay your lawyer by the hour you will typically get a bill monthly outlining the legal fees and expenses owing. Experienced lawyers are worth their weight in gold and having a percentage arrangement will avoid you having to pay the monthly legal fees.
If you have a serious injury or complicated medical case you should consider hiring a lawyer immediately. If you pay the lawyer based on a percentage of what is recovered then it will not cost you more to hire the lawyer right after your injury.
Posted by personal injury lawyer Mr. Renn A. Holness, only representing the injured, not ICBC or any other insurance company.
Tags: Free Legal Advice, Hire an Injury Lawyer, ICBC, ICBC Injury claim, ICBC Lawyers, Personal Injury lawyer
Posted in British Columbia Lawyers, Car Accident Lawyer, Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Lawyers, ICBC Motorcycle Accident, ICBC Settlements, Injury Attorneys, Legal Advice, Motor Vehicle Accidents, Personal Injury Lawyers BC, Vancouver Personal Injury Lawyer | 3 Comments »
March 14th, 2012
The Insurance Corporation of British Columbia in most car accident personal injury claims will try to get the claimant’s Medical Services Plan(MSP) printout. The BC Supreme Court has confirmed again that ICBC is not entitled to the MSP printout in a personal injury case without good reason (Kaladjian v. Jose, 2012 BCSC 357) . This case concerns court applications for production of documents from persons not parties (“PNP”) to the lawsuit ( Rule 7-1(18) ).
This personal injury decision concerned an appeal from a Master dismissing ICBC’s court application for a copy of the claimant’s Medical Service Plan Claim. The case arose from a car accident injury in BC in which The claimant sought compensation for pain and suffering and loss of enjoyment of life, as well as past and future earnings losses, loss of homemaking capacity and cost of future care and management fees.
ICBC submitted that in refusing to order the production of the MSP report the Master was wrong in his interpretation of Rule 7-1(18) of the Rules of Court.
Further ICBC, through the defendant, submitted that the decisions of Master Baker in Anderson v. Kauhane, February 22, 2011, Vancouver Registry No. M103201 [Kauhane], and of Master Bouck in Przybysz v. Crowe, 2011 BCSC 731 [Crowe], also refusing the production of MSP reports were wrongly decided.
The Supreme Court disagreed stating at paragraph 88, “In relation to those submissions I have, for all of the foregoing reasons, concluded that if only the defendant has pleaded a pre-existing condition, Master Baker’s and Master Bouck’s decisions in Kauhane and Crowe requiring evidence to support a defendant’s application for the production of MSP records were not wrongly decided.”
Posted by Personal injury Lawyer Mr. Renn A. Holness
Tags: Document Discovery, ICBC Statement, Low Velocity Impact Policy, MSP Printout, New Civil Court Rules, persons not parties, Prior Condition
Posted in ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »
March 7th, 2012
When getting free legal advice for a car accident, bike collision or pedestrian injury in social media the best lawyers will make it clear if and when you have to start paying legal fees. I have been a personal injury lawyer in British Columbia since 1995 and I have written often about how personal injury lawyers are paid in BC and How to hire a personal injury lawyer . Social media is no different in that legal advice should only be sought from a qualified lawyer. There are many opinions people will offer in good faith but if you are an injury claimant seeking help, unqualified advice can be confusing and misleading. Car accident injury claims will require much more than a social media site can offer.
The Insurance Corporation of British Columbia, ICBC, has had more of a presence in social media due to the growing use of this medium of communication. What once was a care free environment has now become a feeding ground for appraisal and assessment of personal injury claimants. All of the top social media sites flourish on the exchange of personal information.
Bottom line is to talk to a real personal injury lawyer on the phone and go in for a free face-to-face legal consultation. Personal injury law changes almost every day as new cases are released, some overturned, and legislation is created, repealed and amended.
Posted by personal injury lawyer Mr. Renn A. Holness
Tags: Accident Insurance Claim, British Columbia Lawyers, Car Accident Claim, Car accident lawyer, Find Lawyers, Free Legal Advice, ICBC Injury claim, ICBC Lawyers, Insurance Claim, Legal advice, personal injury in social media
Posted in British Columbia Lawyers, Car Accident Lawyer, Hiring a Personal Injury Lawyer, How Much Money Will I Get?, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Lawyers, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Injury Attorneys, Legal Advice, Motor Vehicle Accidents, Personal Injury Lawyers BC, Vancouver Personal Injury Lawyer | 1 Comment »
February 21st, 2012
In this infant personal injury claim a six year old boy riding his bicycle (McIlvenna v. Viebig, 2012 BCSC 218) was injured in a car crash with a motor vehicle. The car accident occurred near an uncontrolled T-intersection where a road that runs along the west side of the Tsawwassen Town Centre Mall intersects with Library Road in Delta, British Columbia. The young injury claimant was making a left turn on his bicycle and the trial was only concerned with the question of who was at fault for the accident.
This was the second trial of this personal injury case, a new trial having been ordered by the Court of Appeal in McIlvenna (Litigation guardian of) v. Viebig, 2008 BCCA 105.
The court concluded that , notwithstanding the obligation to use greater care because of the presence of children, the young injury claimant had not established that the other driver did not exercise reasonable care. The evidence established the contrary, that the accident occurred when the claimant cut the corner into the car’s oncoming lane, at a time when the car was driving with extreme care.
Interestingly, the judge went on to address whether, if his decision was wrong, the cyclist was contributorily negligent. Despite this boys tenders years the judge would have apportioned fault to the driver at 60% and the young cyclist at 40%. In making this find the judge stated, Read the rest of this entry »
Tags: At Fault, ICBC Injury claim, infant claim, Legal advice, Negligence
Posted in #1 Vancouver Bike Lane Experiences, Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, Motor Vehicle Accidents | No Comments »
January 4th, 2012
When a person suffers a serious spinal cord injury due to a car accident it may become impossible for the claimant to physically sign over authority to trusted family members. The victim of personal injury may still be legally competent but simply cannot physically take care of their day to day living needs or take the necessary steps in their ICBC personal injury claim. In British Columbia personal injury lawyers can help injury claimants and their families choose between Adult Guardianship and Legal Representation under the Representation Act.
A representation agreement can allow more than one person to assist. One representative can be appointed to help make decisions about routine management of financial affairs, and another can be appointed to obtain legal services and instruct a personal injury lawyer with respect to ICBC claims or other personal injury claims. There are strict limitations on who can be a representative and whether the representative can make decisions without unanimity. It’s best to hire a lawyer to draft the documents necessary for the representation agreement to be effective and valid.
The great thing about Representation Agreements is that they DO NOT deprive the injury claimant of the ability to make decisions about their ICBC personal injury case, if capable, despite a representative may have been authorized to make that same decision. The claimant maintains their legal right to make decisions and allows them to change the agreement whenever they choose.
The following activities are considered “routine management of financial affairs”: Read the rest of this entry »
Tags: Brain Injury, British Columbia Lawyers, Car Accident Claim, Car accident lawyer, ICBC Injury claim, Representation Agreements, Spinal cord injury
Posted in #1 ICBC Injury Claims, #1 ICBC Personal Injury Lawyers, #1 Spinal Cord Injury Lawyer, Brain Injury, Head Injury, Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Motor Vehicle Accidents, Personal Injury Lawyers BC, Spinal Cord Injury, Traumatic Brain Injury | No Comments »
December 21st, 2011
I have been a personal injury lawyer in Vancouver since 1995 and have witnessed the change in how the Insurance Corporation of British Columbia, ICBC, pays for physiotherapy. I have written and dealt extensively with ICBC accident benefits and explain how ICBC accident benefits work for people that are injured in car accidents in British Columbia. Take some time to read my other articles on this subject.
Physiotherapy is considered a mandatory benefit that ICBC must pay if you are insured and the treatment is medically necessary. If you are a BC resident and your vehicle is registered in BC then you should be covered by these injury benefits after you have been injured in a car accident. The best way to ensure ICBC will pay for your physiotherapy is to get your doctor to confirm in writing the need for the treatment and the fact the the need arises for your car accident injuries.
ICBC is only required to pay for 12 physiothary treatments unless a medical practitioner confirms in writing that more treatments are needed. If ICBC does not think that the expense is reasonable and refuses to pay for the treatment the dispute has to be submitted to arbitration. In my personal injury practice we do very few if any arbitrations given their cost and delay.
Section 88(1) of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, provides that the Insurance Corporation of British Columbia shall pay an insureds benefits defined as “all reasonable expenses incurred by the insured as a result of the injury for necessary” services, therapy, or treatment as set out in the Regulation. Physical therapy is one of the included therapies. Payments under s. 88 are commonly referred to as “no-fault benefits”.
If ICBC does not start the arbitration process within a reasonable time after the denial, you can sue ICBC in Supreme Court to get a court order forcing ICBC to pay.
Most claimants call me frustrated that the ICBC adjuster refuses to pay for physiotherapy despite the family doctors recommendation. Section 88(1) does not confer on the ICBC adjuster the power or right to decide whether the claimant is legally entitled to accident benefits. Regardless of the adjuster’s view, it is open to you to sue ICBC for its failure to provide benefits. It is, however, open to ICBC, to challenge the claimant’s assertion that the treatment is necessary and reasonably priced. That position might be taken, for example, based on separate medical evidence obtained by ICBC (see Tiessen v. ICBC, 2008 BCSC 1822).
An ICBC adjuster is not qualified to express a medical opinion and if your benefits have been denied despite the opinion of your doctor you should contact a personal injury lawyer right away. Consider hiring a lawyer to prosecute your injury claim so you can focus on your recovery. Posted by Mr. Renn A. Holness
Tags: Accident Insurance Claim, Car Accident Claim, ICBC, ICBC benefits, ICBC Injury claim, Personal Injury, Whiplash Claims
Posted in Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »
