May 9th, 2012
This BC Court of Appeal personal injury case is another example of just how important an ICBC statement is in a car accident lawsuit(Power v. White, 2012 BCCA 197). The Court upheld the decision of the Supreme Court of BC finding the rearending driver fully at fault despite the injury claimant having swerved and braked in front of him trying to avoid a deer. Take a read of my review of the Supreme Court decision, deer in the road. The ICBC, Insurance Corporation of British Columbia, statement of the at fault driver was instrumental in finding him at fault for the accident.
The trial judge found that the driver ought to have had time to stop his pick-up truck and Uhual before rear-ending the claimant’s car had he braked sooner or if he had been travelling at a slower speed when towing a trailer without brakes.
In dismissing the Appeal the Court stated at paragraph 49:
In light of the appellant’s statement to ICBC and his testimony just quoted, I am of the view that this is not a case in which it is plain and obvious that the judge misapprehended the evidence about when and where the appellant first saw the deer. Under the standard of review jurisprudence, it is clear that an appellate court may not interfere with a trial judge’s conclusions on matters of fact unless there is a palpable and overriding error. As Housennotes in paragraph 1, that same proposition is sometimes stated “as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion.” The appellant’s statement to ICBC, confirmed as accurate during cross-examination, along with his trial testimony referred to above, constitutes an evidentiary basis for the judge’s conclusion that the appellant saw the deer before the respondent began to turn into the right lane.
The Appellant also tried unsuccessfully to have the expert engineering evidence thrown out. In upholding the trial judge’s reliance on this evidence the Court found, Read the rest of this entry »
Tags: Accident Insurance Claim, At Fault, Car Accident Claim, ICBC, ICBC Injury claim, ICBC Statement, Negligence
Posted in ICBC Car Accident, ICBC Insurance Claims, ICBC Truck Accident, Motor Vehicle Accidents | 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 18th, 2012
In this Fast Track car accident injury case (Bissonnette v. Horn, 2012 BCSC 518) the injury claimant was a passenger in a vehicle driving southbound on 203rd Street, near Michaud Crescent, in Langley, B.C. Another vehicle, also traveling southbound on 203rd Street, cut off the claimant vehicle causing it to lose control, which then came in contact with a utility pole.
The main issues at trial were the extent of the claimant’s pain, what injuries were caused by the accident, and the proper measure of her compensation. ICBC argued that the complaints of left hip pain did not arise until years after the car accident and were not caused by the accident. ICBC relied on the evidence of Dr. Grypma.
The court accepted the injury claim despite the defence awarding $109,500 in damages consisting of the following:
a) Pain and suffering of $40,000;
b) $37,500 for past lost income;
c) $30,000 for lost future earning capacity;
d) $500 for out of pocket expenses, and
e) $1,500 for the cost of future care.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness
Tags: Accident Insurance Claim, Back Pain, Car Accident Claim, ICBC, ICBC Injury claim, Insurance Claim, Legal Causation, New Civil Court Rules, Pain and Suffering, Personal Injury, Whiplash Claims
Posted in ICBC Car Accident, ICBC Insurance Claims, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | 1 Comment »
April 11th, 2012
In this Vancouver filed car accident injury claim(Sandhar v. Rolston,2012 BCSC 495) the Supreme Court of BC says that at fault driver’s are still responsible for injuries that continue after an intervening injury for which the claimant is at fault.
The claimant’s car was struck from behind by another motor vehicle and her car was pushed into another vehicle stopped in front of her. Fault was admitted and the trial proceeded on the assessment of damages. Four year after the motor vehicle accident the claimant injured her shoulder while shovelling snow which resulted in surgery. The judge found that the snow shovelling activity did not reactivate or aggravate the previous injuries, but instead caused a new injury. As that judge stated, “ I conclude the injury from the snow shovelling is divisible. It was not caused by an exacerbation of the injuries from the car accident and cannot be blamed on the defendant.”
That does not mean compensation for the injuries from the car accident is cut off from the date the injury claimant shovelled snow. The judge rightly pointed out that if the car accident injuries continued to have their effects after the shovelling injury, the at fault driver remains liable to compensate the injury claimant for those effects. See Dudek v. Li, 2000 BCCA 321.
The Court awarded the injury claimant $60,000 for pain and suffering.
Posted by Personal Injury LawyerMr. Renn A. Holness
Tags: Accident Insurance Claim, At Fault, Back Pain, Car Accident Claim, Legal Causation, Negligence, Pain and Suffering, Personal Injury lawyer, Whiplash Claims
Posted in Back Pain, How Much Money Will I Get?, ICBC Car Accident, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury | 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 »
April 2nd, 2012
This car accident injury claimant was awarded over $1.6 million for personal injury after deduction of welfare payments(Campbell v. Swetland, 2012 BCSC 423). This personal injury claim arose from a motorcycle and automobile collision that occurred when the claimant was riding her red 2010 Triumph motorcycle northbound on Highway 6 when the south bound defendant, driving a white 1998 Subaru Forester, turned left across her path. The collision occurred at the intersection of Highway 6 and Storbo Road about 7 kilometres north of Crescent Valley near Nelson, British Columbia.
The judge found that the other driver was at fault.
The claimant suffered severe, debilitating and life threatening injuries. With respect to the deduction of past and future welfare payments the court pointed out,
[69] The Supreme Court of Canada affirmed the deductibility of welfare payments from income loss awards in M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, holding:
25. It is argued that social assistance is not a form of income replacement, because it is given on the basis of need for the purpose of relieving poverty.
26. In my view, this argument is mistaken. It is true that social assistance benefits are intended to relieve poverty, and that need is the relevant criterion. However, as Smith J.A. pointed out in his dissenting judgment in the Court of Appeal in the case at bar, this does not mean that they are not intended as wage replacement. On the contrary, it suggests that they are intended to replace that part of employment income that would normally be spent on meeting basic needs (para. 162). Most people who require welfare require it because they lack sufficient income to meet their basic needs, and the normal source of sufficient income is employment of one sort or another. Social assistance therefore replace income that most people would have obtained through employment. It does not purport to replace all of the income they would have obtained if they had a job. It only replaces enough to satisfy basic needs. But it is no less “wage replacement”, simply because it only replaces a portion of the income a person might otherwise have had.
Posted by personal injury lawyer Mr. Renn A. Holness
Tags: Chronic Pain, Loss of Income, Multiple Injuries, Pain and Suffering, welfare payments deducted
Posted in Brain Injury, Head Injury, How Much Money Will I Get?, ICBC Car Accident, ICBC Insurance Claims, ICBC Motorcycle Accident, Limb Injury, Motor Vehicle Accidents, Soft Tissue Injury, Traumatic Brain Injury | No Comments »
March 26th, 2012
The injury claimant was injured when the car she was driving was rear-ended by another vehicle(Fell v. Morton,2012 BCSC 428). Fault for the accident was admitted but causation and quantum remained in dispute likely by the insurer ICBC , given that the car accident occurred in British Columbia. The questions were whether the back and neck pain and migraine headaches were pre-existing problems that were just aggravated shortly by the accident; and whether the claimant suffered loss of earning capacity due to her injuries.
At the time of the car accident injury the claimant was self-employed in the film industry as a first aid service provider which involved being on location during filming to provide first aid and to provide snacks and light meals for actors, directors, and the film crew. Following the accident, she continued to work until taking her maternity leave. Note that when you continue working after a car accident you are not typically entitled to ICBC disability benefits.
In this oral decision the judge in awarding over $100,000 commented,
In summary, the injuries from the accident have affected all areas of [the injury claimant's] Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre‑existing condition and proclivity to develop migraine headaches.(para 39)
The total compensation awarded to this injury claimant was as follows:
| |
Pain and suffering: |
$65,000 |
|
| |
Out of pocket expenses: |
$4,175 |
|
| |
Cost of future care: |
$2,500 |
|
| |
Past wage loss: |
$0 |
|
| |
Loss of earning capacity: |
$50,000 |
|
| |
TOTAL: |
$121,675 |
Check out my other posts about pregnant injury claimants. Posted by car accident injury lawyer Mr. Renn A. Holness
Tags: Car Accident Claim, Car accident lawyer, ICBC, ICBC Injury claim, ICBC Lawyers, Legal Causation, Loss of Income, Neck Pain, Pain and Suffering, Personal Injury, Personal Injury lawyer, Prior Condition
Posted in Back Pain, Car Accident Lawyer, How Much Money Will I Get?, ICBC Car Accident, Limb Injury, Motor Vehicle Accidents, Neck Pain, Soft Tissue Injury, Whiplash Claims | No 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 »
