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 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 »
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 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 12th, 2012
This car accident injury case was sent back for a new trial because the Court of Appeal found that the trial judge was wrong in reducing the injury claimants award for failure to following medical advice (Wahl v. Sidhu, 2012 BCCA 111). I reviewed the original decision in which the injury claimant was travelling on 72nd Avenue, in Surrey, B.C. and my article focused on the judges reluctance to compensate for personal injury lawyer funded treatment. Clearly the trial decision was wrong and cannot be relied upon.
The BC Court of Appeal rightly pointed out that the judge’s reasons confuse the issues of causation and mitigation. As stated in Yoshikawa, “any question of mitigation, or failure to mitigate, arises only after causation has been established” (para. 12, subparagraph7). Read the rest of this entry »
Tags: Accident Insurance Claim, Back Pain, British Columbia Lawyers, ICBC, ICBC Injury claim, Legal Causation, Mitigation, Negligence
Posted in Back Pain, British Columbia Lawyers, Car Accident Lawyer, ICBC Car Accident, ICBC Insurance Claims, ICBC Truck Accident, Motor Vehicle Accidents, Personal Injury Lawyers BC, Soft Tissue Injury, Vancouver Personal Injury Lawyer, Whiplash Claims | 1 Comment »
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 »
March 2nd, 2012
This is a Court award Punishing ICBC $75,000.00 for Bad Faith (McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283) after the BC Supreme Court found the Insurance Corporation of British Columbia’s conduct to be harsh, high-handed and oppressive and a marked departure from the Court’s sense of decency and fair play.
The plaintiff was headed to Abbotsford along Highway 1 and reached the Mt. Lehman interchange in Abbotsford where the car accident took place. The plaintiff testified that upon reaching the interchange, she mistakenly exited Highway 1 on the second, rather than the third, off-ramp. As she manoeuvred left, however, she realized too late that she had turned against the flow of traffic. Before she could rectify her mistake, she collided head-on with another vehicle which was coming from the opposite direction. She admitted to the mistake but ICBC refused to cover the claim of the other driver alleging that the plaintiff was impaired by alcohol at the time of the accident and therefore in breach of her insurance.
The day after the accident the plaintiff ’s father used the ICBC dial-a-claim number to report his daughter’s accident to ICBC. Among other things, he informed the claim center that his daughter had been driving and “was sore” and that he was not sure when she would be available to attend an appointment. This information was recorded in the claim file folder maintained by ICBC.
The Court concluded, “that due to inattentiveness the plaintiff missed the road signs which were there to be seen and then seriously misjudged her entitlement to turn left where the second off-ramp intersects with the Fraser Highway. The weight of the evidence indicates that her substandard driving at the material time was unconnected to her prior alcohol consumption. The evidence does not establish that the plaintiff was in an impaired state, much less that she was incapable of controlling her mother’s car due to alcohol intoxication when the accident happened.”[para 177]
ICBC continued to refuse the Plaintiff’s coverage alleging that she was impaired by alcohol at the time of the collision. Maintaining this position in bad faith resulted in an award of punitive damages. Importantly, the plaintiff was also entitled to indemnity from ICBC for all claims arising from the accident. The Court harshly criticized ICBC stating, Read the rest of this entry »
Tags: At Fault, bad faith, Car Acccident Settlement, ICBC, ICBC Injury claim, ICBC obligation to defend, ICBC Statement, Insurance Claim, punitive damages, Settlement
Posted in ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »
