ICBC Law

It’s snowing heavily outside, our Christmas tree is lit and the the fire is going.  It’s a beautiful December evening in British Columbia unless of course you’re out in traffic.  With that in mind I’m republishing a post I originally wrote in April of this year on this ICBC injury claims blog:

Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.

In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.

If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.

If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.

Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.

If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.

People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.

Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.

In my years of practice as an ICBC Injury Claims lawyer I have seen my share of unique cases.

One type of case that I have always found interesting and challenging are those dealing with the issue of fault when someone becomes ill behind the wheel and as a result is involved in a motor vehicle collision.

What if a driver loses control of a vehicle due to a heart attack and injures others?  What if the driver has a stroke or a seizure?  What if a driver blacks out due to a medical condition and injures others?  Can the innocent victims make an ICBC tort claim for pain and suffering in these circumstances?  The answer is it depends.

The ability to make a tort claim in negligence for pain and suffering revolves around the issue of fault.  If someone loses control of their vehicle due to a medical condition they may not be at fault for the collision.  The issue is whether the driver who lost control knew or should have known that he/she was at risk for losing control of their vehicle.  If a driver has every reason to believe he/she is medically fit when getting behind the wheel and then suffers an unexpected medical event which leads to a car accident they may not be at fault.  This can be contrasted where someone forgets to take prescription medication which exposes them to the risk of seizure and then ends up in a car accident.  In the latter case liability is much more likely.  The challenging cases lie in the big grey area in between these 2 hypothetical scenarios.

There are many details that need to be explored when determining whether a driver who injures others due to a medical condition is at fault.  When ICBC tort claims are denied in such circumstances it is important to explore the drivers fitness to drive and get to the bottom of what he/she knew or should have known about their fitness prior to getting behind the wheel.

Reasons for judgement were released today by the BC Supreme Court finding a motorcyclist liable for injuries to his passenger.

The Plaintiff was a passenger on the Defendants motorcycle.  He turned onto a highway in British Columbia and changed gears.  This produced a ‘burst of accelaration’ and at this time the Plaintiff was thrown off the back of the motorcycle.

The Plaintiff sustained road rash types of injuries ‘including loss of skin to various parts of her body, soft tissue injuries, various extensions and strain injuries, a lingering loss of sensation in her fingertips, and a reoccurrence of previously suffered depression‘.

The court found that the Defendant driver was liable in negligence for these injuries.   The courts key findings were made at paragraphs 23-24 which I reproduce below:

[23]            I find that Mr. James was an experienced motorcyclist.  I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James.  As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears.  I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle.  I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.

[24]            I find that Mr. James did operate the motorcycle negligently that day.  I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect.  I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur.

The court assessed the Plaintiff’s non-pecuniary damages (pain and suffering) for her various injuries at $40,000.

This is a useful case for anyone advancing an ICBC injury tort claim who was injured even though no actual collision occurred.  This case demonstrates that a collision is not a pre-requisite for succeeding in a tort claim in British Columbia.  

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.

The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.

The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.

The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004.  The vehicle left the roadway, hit a ditch and over-turned.  3 of the 4 occupants sued for personal injuries.

The front seat passenger grabbed the steering wheel while the vehicle was in operation.  The vehicle then lost control.  The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night.  Hers was the only memory subject to the confounding effect of excessive alcohol consumption.  I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41]            Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol.  The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish.  I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did.  The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel.  I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42]            I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night.  Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43]            In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch.  (the driver) was not negligent and did not contribute to the cause of the accident.  (the driver) was sober and was competent to drive the Jeep.  No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.

In this case the vehicle was owned by the front seat passenger’s father.  He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle.   Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86        (1)        In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a)        is living with, and as a member of the family of, the owner, or

(b)        acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle.  In fact the court found that:

[24]            The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession.  His purpose for imposing that rule was to keep the children and his cars safe.  That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends.  The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.

The court found that the father (owner) did consent in these circumstances finding that:

[32]            Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party.  Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33]            In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34]            For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!

Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle.  Specifically the court found that:

[51]            When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory.  As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52]            For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it.  (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.

Reasons for judgement were released today awarding a Plaintiff nearly $1.3 million in damages as a result of a 2002 motor vehicle collision which occurred at UBC.

The Plaintiff was a pedestrian at the time.  She was struck while walking in a marked crosswalk on a dark and rainy evening.  Both fault and quantum (value of the ICBC claim) were at issue at trial.

The court found that the defendant driver was 100% responsible for the collision.  At paragraph 8 Madam Justice BJ Brown noted that

[8]                In my view, (the Defendant) is 100% responsible for the accident.  She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space.  She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes.  Indeed, she was picking her husband up from teaching a class. 

The Plaintiff was a PhD student looking to earn her degree in chemistry at the tine.  The court found that she suffered some significant injuries which are summarized at paragraph 69 of the judgement:

[69]            (the Plaintiff’s) condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident.  It developed over the days and weeks following the accident, as (the Plaintiff) complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”.  Her complaints exceeded the physical signs. 

The court assessed damages as follows:

In noting that $1,000,000 was appropriate in loss of earning capacity, the court noted that ‘chronic conversion disorder, such as demonstrated by (the Plaintiff), usually evolved into a chronic illness.  Despite treatment, the majority of these patients fail to return to work.  Accordingly, it is unlikely that (the Plaintiff) will earn any significant amount of the course of her lifetime.’

This case is worth reviewing for anyone advancing a contested pscyhological injury claim with ICBC as it gives insight into the complexity involved in prosecuting such cases.

Reasons for judgement were released today dismissing a claim where a Plaintiff sued ICBC alleging that ICBC infringed on her right to ‘freedom of thought, belief, opinion and expression” as guaranteed by the Canadian Charter of Rights and Freedoms.

This is a somewhat unusual judgement.  The Plaintiff was involved in a car accident in 2003.  She was apparently ticketed for her driving and ‘she felt alright with accepting total fault for the accident, because her car was in the pathway (of the other vehicle) when his car collided with hers.’

The other driver made a tort claim against the Plaintiff thereby triggering her policy of insurance with ICBC.  ICBC appointed a lawyer and defended the claim.  Ultimately the claim settled and the Plaintiff was indemnified for the damages she had to pay to settle the other motorists tort claim.

In the lawsuit ICBC denied that their insured was at fault.  ICBC often does this even if the Defendant is likely at fault for an accident.  The Plaintiff appeared displeased with this decision.  Some friction arose between the Plaintiff and her insurer ICBC.   This friction surrounded meetings between the Plaintiff and her ICBC appointed lawyer in preparing her for her evidence at an examination for discovery.    The Plaintiff was apparently concerned that her lawyer was ‘trying to influence her version of how the motor vehicle accident occurred‘.’  Ultimately ICBC sent the Plaintiff a letter informing her that ‘there is some indication that (the Plaintiff) did not meet a condition of your insurance contract‘.  The condition referenced in the letter was apparently the condition of an insured to co-operate with ICBC as required by s. 73 of the Insurance Vehicle Regulation.

This letter triggered the above lawsuit whereby the Plaintiff alleged ICBC infringed her Charter rigths.  ICBC applied to dismiss the claim arguing that the lawsuit contained no bona fide triable issue.  Mr.  Justice Halfyard agreed with ICBC and dismissed the claim.  In doing so he found that “I think it is arguable that the statement of claim could be amended so as to allege a cause of action for conspiracy to suborn perjury…In my opinion, no useful purpose would be served in allowing the Plaintiff to amend the statement of claim.  It is my opinion that most of the possible causes of action fail to disclose any reasonable claim, and those that might be amended so as to allege causes of action for intimidation and conspiracy to suborn perjury are bound to fail‘.

This case, while a little off the beaten path, goes to show that ICBC (in the course of defending one of their insured in a tort claim) has the right to decide whether the issue of fault for an accident will be admitted.  As Mr. Justice Halfyard notes, 

 It was counsel’s duty to assess Ms. Joe’s statement of how the accident occurred, and to then advise I.C.B.C. as to whether or not liability should be admitted.  Under the regulations, I.C.B.C. had the exclusive authority to decide whether liability would be admitted, in whole or in part, on behalf of Ms. Joe.  Many cases occur in which I.C.B.C admits 100% liability on behalf of insured drivers who deny they were at fault for the accident.  In the present case, there was nothing improper in defence counsel and I.C.B.C. taking the initial position that Mr. Knight was partly at fault for the accident.  Mr. Knight had apparently admitted he was not wearing a seat belt.  That position was also justified by Ms. Joe’s description of her actions, even accepting the statement she claims to have consistently given.  But counsel would understandably want to pin down the version of events that she would be giving on discovery, in the circumstances of this case.  That could never amount to an attempt to make Ms. Joe deny that she was at fault.  It was for counsel to predict what degree of fault should be attributed to her, based on her own statement and the other circumstances surrounding the accident.

If you feel you are at fault for an accident the best thing you can do is let ICBC know this in no uncertain terms.  If any indication is given that ‘an insured’ is not at fault for an accident ICBC will likely put the issue of fault into play in any subsequent tort claim.

Reasons for judgement were released today by the BC Supreme Court concerning a 2005 intersection crash that occurred in the lower mainland of BC.

The Plaintiff was making a left hand turn from Hastings onto Willingdon.  At the same time the Defendant was operating a vehicle coming the opposite direction on Hastings.  A collision occurred.  There were no independent witnesses to this crash.  Both the Plaintiff and Defendant testified and as can be expected their evidence differed to several facts with each blaming the other for the crash.

Madam Justice Dardi preferred the Plaintiff’s evidence over the Defendant’s finding the Defendant testified in ‘an evasive and less straightforward manner’.

The court found that the Plaintiff was clearing the intersection on a stale yellow light and at the time the Defendant entered the intersection ‘it was not safe from him to do so on a very late stage amber or red light.  He should have stopped’.  The court found the Defendant 100% responsible for this intersection crash.

In reaching this decision Madam Justice Dardi summarized the law relating to left-hand turn intersection crashes as follows:

[34]            Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the right-of-way in situations where a driver is making a left turn:

When a vehicle is in an intersection and its driver intends to turn left, the driver must yield the right of way to traffic approaching from the opposite direction that is in the intersection or so close as to constitute an immediate hazard, but having yielded and given a signal as required by sections 171 and 172, the driver may turn the vehicle to the left, and traffic approaching the intersection from the opposite direction must yield the right of way to the vehicle making the left turn.

[35]            An immediate hazard exists if the oncoming vehicle must make a sudden or violent avoiding action to prevent a collision: Aerabi-Boosheri v. Retallick, [1996] B.C.J. No. 143 at para. 8.

[36]            Section 128 of the MVA governs the duties of drivers when a traffic light turns yellow.  It states, as far as is relevant, as follows:

128      (1)        When a yellow light alone is exhibited at an intersection by a traffic control signal, following the exhibition of a green light,

(a)        the driver of a vehicle approaching the intersection and facing the yellow light must cause it to stop before entering the marked crosswalk on the near side of the intersection, or if there is no marked crosswalk, before entering the intersection, unless the stop cannot be made in safety…

[37]            Who has the statutory right-of-way is informative; however, it does not determine liability in an accident.  Drivers with the statutory right-of-way must still exercise caution to avoid accidents where possible.  In Walker v. Brownlee, [1952] 2 D.L.R. 450, Cartwright J. states at paras. 46-47:

[46]      The duty of a driver having the statutory right-of-way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodward v. Harris, [1951] O.W.N. 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided.”

[47]      While the judgment of the Court of Appeal in that case was set aside and a new trial ordered [[1952] 1 D.L.R. 82] there is nothing said in the judgments delivered in this Court to throw any doubt on the accuracy of the statement quoted.

The Plaintiff suffered from various soft tissue injuries.  The court summarized the Plaintiff’s injuries at paragraph 57 as follows:

[57]            Dr. Steinson was an impressive witness.  I accept his opinion that the plaintiff has developed a myofascial pain syndrome in his neck and trapezius as a consequence of the injury in the motor vehicle accident.  I also find that the episodic pain that the plaintiff continues to experience is mild to moderate.  Dr. Steinson’s prognosis for the plaintiff is guarded.  Based on the medical evidence, the likelihood is that the plaintiff’s symptoms will continue to improve over the next few years although there is a possibility that his episodic pain may persist further into the future

The court awarded the following damages:

(1)        Non-pecuniary loss $30,000;

(2)        Loss of future earning capacity $20,000;

(3)        Cost of future care $2,000; and

(4)        Special damages $500.

Reasons for judgement were released today dismissing the claim of a Plaintiff against the Greater Vancouver Transportation Authority for injuries sustained while on a bus in White Rock in 2005.

At some point after boarding the bus the Plaintiff stood up, “She held the floor-to-roof stanchion adjacent to the courtesy seat with her right hand.  She rotated clockwise so that her back was to the collapsible seat.  As she did so, she changed her grip in order to hold the stanchion with her left hand.  (the Plaintiff) let go of the stanchion she had been holding with her left hand as she proceeded to sit down in the collapsible seat and before she was seated.  (the Plaintiff) testified to her recollection that the bus accelerated from the bus stop causing her to lose her balance and to descend with some force.  The sacral-lumbar portion of her back struck the plastic armrest affixed to the left side of the collapsible seat.  A photograph of the injury taken later in the day indicates that the point of contact was directly on the sacral-lumbar area or the coccyx, and not to the left or right of the spine.”

The court dismissed the claim finding that “On the evidence that has been adduced, I conclude and find as a fact that the sole cause of the accident was (the Plaintiff’s) omission to take precautions to ensure her own safety on a moving bus.  She omitted to hold the stanchion that was readily available to her as she sat down.  I am not persuaded on a balance of probabilities that the bus was operated in any manner which could be classified as negligent.”

While this is by no means an exciting claim, Mr. Justice Pitfield did a great job in summarizing some of the authorities that deal with the duty of care owed by bus drivers to their passengers.  He recited the following well known principles when dealing with injured occupants on a bus:

Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger.  The care required is of a very high degree

…once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger.  The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances.  The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger.  The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

Reasons for judgement were released today awarded damages as a result of injuries sustained in a 2005 Kamloops, BC car crash.

The Plaintiff’s vehicle was rear-ended as she slowed to make a right hand turn.

Normally in such rear-end cases liability (fault) is admitted but in this case liabilty was disputed.  The Defendant claimed that the accident was caused by the actions of the plaintiff when she ‘accelerated in front of him, cut him off and themn braked quite dramatically at the corner (of the intersection).’

The court rejected this defence and found that “this is not a case where the evidence supports a conclusion that the plaintiff’s vehicle cut in front of the defendant in such a way as to alleviate his responsibility‘.  The defendant was found 100% to blame.

In terms extent of injury, the court made the relevant findings at paragraphg 50 of the judgement, which I set out below:

[50]            I conclude that (the Plaintiff) sustained a moderate soft tissue whiplash injury in December 2005 which caused pain and discomfort to her neck and back and resulted in her experiencing headaches.  These symptoms were initially acute, causing her to miss approximately three weeks of work and necessitating that she take pain medication and treatment, most notably physiotherapy.  The pain and discomfort at times extended to her hip area.  It gradually subsided with the passage of time.  It was significantly resolved within three to four months of the accident, but she continued to experience some discomfort and limitation of her activities, albeit on a gradually improving basis, over time, up to the point of trial.  At trial, all of the complaint of headache had resolved but there was some lingering discomfort and stiffness in her neck and back.  That discomfort is essentially resolved at this time, and there is every reason to conclude that she has not sustained any permanent damage.  With proper exercise and self-care, there will be a complete resolution

The court awarded $22,000 for these moderate soft tissue injuries, $2,163.21 for lost wages and $351 for special damages.

This is a short crisp judgement dealing with issues that often arise in ICBC claims.  This case is worth reviewing for anyone involved in an ICBC injury claim to see some of the factors court’s consider when valuing soft tissue injuries and addressing the issue of fault in a rear-end crash.