I’m the Victim of a “Hit and Run” – What Should I Do?

Being in a car accident is overwhelming at the best of times, but what if the guy who crashed into you takes off and you have no idea who he is. What are you supposed to do then?

Our Insurance (Vehicle) Act provides compensation for individuals injured in a hit and run situation, but there are specific things you must do in order to protect your opportunity to make that claim.

Most important of all, you must make all “reasonable efforts” to find the identity of the unknown driver and owner of the vehicle he was driving.  Reasonable efforts include:

  • talking to all witnesses at the scene (this includes people in the neighborhood or in stores/coffee shops located close to the scene who may have seen something);
  • returning to the scene to post signs with your contact information to locate witnesses;
  • running an advertisement in the local newspapers looking for the name of the driver;
  • providing written notice of the hit and run to ICBC as soon as possible, including details of why that person is at fault for the collision; and
  • reporting the collision to the police.

The circumstances of each hit and run are different, so what is considered as “all reasonable efforts” depends on the situation.  We know that if you had a chance to record the license plate number but never did, you unfortunately have probably not made reasonable efforts and that will be fatal to your claim.  The same is true if you did get the plate number but lost it.

ICBC has no duty to explain any of this to you.

A member of our Personal Injury Team will work with you to make sure you have made reasonable efforts to find the unknown driver. Contact us today for a free consultation.

My Child has been Injured in a Car Accident – What Should I Do?

It can be terrifying when your child has been injured in a collision.  Your first concerns, obviously, are for his or her well-being.  You may also be unsure of how to deal with ICBC because, as you might suspect, special rules apply to anyone under the age of 19 (a “minor”).

Although ICBC must be notified of the accident promptly, there is no obligation for your child to have a face-to-face meeting with ICBC.  There is a duty to provide ICBC with a brief written statement, but that can be prepared and sent to them, assuming the child is old enough to provide one.

The usual 2 year time limit for starting a lawsuit does not begin until the child’s 19th birthday.  It is important to note, however, that not all limitation periods are postponed because of age.  It is important to obtain legal advice soon after the collision to determine what applies in your child’s particular situation.  Sometimes you have as little as 30 days to take the first legal step.

In order to start a lawsuit on behalf of a minor, an adult must be appointed as Litigation Guardian.  This adult is responsible for instructing the lawyer and making decision on behalf of the child.  The Litigation Guardian is often a parent, but cannot be someone named as a defendant in the lawsuit.  For example, if the child’s parent was driving and is being blamed for the accident, that parent would be named as a defendant in the lawsuit, and therefore unable to act as the Litigation Guardian.  In that case, another family member or friend would need to be appointed to the role.

As you can see, there are certainly special considerations when it comes to minors.  A member of our personal injury group will be able to advise of your (and your child’s) rights and responsibilities. Contact us to arrange for a free consultation.

 

 

I’ve Been Injured in a Car Accident – What Compensation Am I Entitled To?

If you have been injured in a collision through no fault of your own, you may be entitled to financial compensation.  It is helpful for you to know what that type of compensation might include, as your ICBC adjuster’s motivation is to close your file quickly and for as little as possible, not to educate you.

The common categories of financial compensation for injuries include:

Pain and Suffering

This refers to compensation for the loss of enjoyment of life caused by the accident.  If you aren’t able to perform and participate in the activities that you used to, that will be taken into account.

The dollar figures for pain and suffering range dramatically from case to case, and are based on the duration and severity of your suffering.

If your expectations are based on U.S. TV shows, you will probably be sorely disappointed.  In Canada we have a cap on how much a person can be awarded for pain and suffering, which is just over $300,000, and it is very rare to reach those limits.

Wage Loss

If you have missed days at work because of your injuries, or your ability to work in the future has been affected, you are entitled to be reimbursed for that loss of income.

Special Damages

You should be reimbursed for your out-of-pocket expenses such as medication, therapy or other expenses that you would not have incurred if you had not been injured.

Cost of Future Care

If you can prove that it is required, monies to cover the costs of future care including ongoing medications, treatments or other accident-related expenses.

This list is overly simplistic and is in no way exhaustive. You must have medical evidence to back up your claim and have one or more doctor confirming your injuries.

A member of our personal injury team can advise you on your entitlement based on your specific situation.  Contact us to arrange for a free consultation and assessment of your case.

 

 

What Do You Mean ICBC Isn’t My Insurer?

You’ve been injured in a collision through no fault of your own. You know you’re entitled to compensation for your injuries, but you keep hearing that “ICBC is not your insurer”. You have your basic insurance through ICBC, so of course they’re your insurer… right?

Sadly, it’s not quite that simple.

Remember, the accident was the result of someone else’s carelessness, not yours.  This means that you will deal with ICBC in two different capacities:

On the one hand, medical expenses and rehabilitation are benefits that ICBC covers under your policy, regardless of who is at fault.  For these reimbursements, the adjuster acts on behalf of your insurer.

On the other hand, when you seek compensation for your injuries, you ask for damages under the at-fault driver’s insurance policy, not yours.  The very same adjuster who helped with your medical expenses now has the job of ensuring that they pay you as little as possible.  He or she will work against you, and will use anything you have told ICBC to minimize payment for your injuries.

An injury lawyer understands the complexities of auto insurance coverage and will fight on your behalf for the compensation you are entitled to.

If you have been injured in a motor vehicle collision, contact us to arrange for a free consultation.

Your Facebook Profile as Evidence Against You – Part 2

Roughly a year ago, I wrote a blog post titled “Your Facebook Profile as Evidence Against You.” Since that post, I have been contacted numerous times on the topic of Facebook profiles as evidence, most recently by Canadian Lawyer 4 Students magazine for their article Judge Orders Law Student to Hand Over Facebook Pics.

In April of this year the Supreme Court of British Columbia made a ruling in the decision of Fric v. Gershman 2012 BCSC 614 concerning the use of evidence from Facebook profiles in personal injury claims. In this case the court ordered vacation photographs from the injured party’s Facebook profile to be disclosed. The photographs that were ordered to be disclosed included those showing the Plaintiff engaged in a physical recreational activity.

In coming to its decision, the Court considered whether the evidence on the Facebook profile was material and relevant, and if it was material and relevant, whether the Plaintiff’s right to privacy might override disclosure obligations. Interestingly, although photographs posted on Facebook were ordered produced, the Court allowed the injured party to edit those photographs to protect the privacy of third parties appearing in the photograph. Additionally, the Court held that the injured party was not obliged to produce commentary on the photographs which may have been posted on Facebook.

Whether your photos or comments are on Facebook, Twitter, Flickr, Picasa, YouTube, saved on your hard drive, in an old-fashioned photo album or on some other site or in some other physical location, if they are relevant and you have access to them, you generally have an obligation to disclose them, and you cannot hide behind privacy settings.  Failure to disclose such evidence risks a court order forcing you to provide access to such sites and locations and the materials available therein.  If the evidence found contradicts your claim, it also risks damaging your entire case.

Of course the easiest way around this entire issue it to simply be honest in your claim.  Don’t claim your injury is greater than it is, and that you are unable to perform activities that you know full well you can.  If there’s nothing to hide, then the defence can look at all the images they want, from whatever site they can find, and the only thing they will see is evidence of a truly injured individual, getting through life with their injury as best they can.

CBC Marketplace – Travel Insurance

This evening (March 9/2012) the CBC’s Marketplace will be doing an episode on the pitfalls of travel insurance.  From the previews I listened to on the radio this morning, it sounds like this episode will be well worth viewing for anyone who is planning on traveling out of the country.

When purchasing insurance, most people have only a very general idea of what they are buying. Rarely do the purchasers of insurance take the time to read the policy. This is unfortunate as insurance contracts are notorious for their “fine print”.  The overlooked fine print contained in the application form, the definitions, and in the overall contract frequently leads to customers being denied insurance coverage. A denial of insurance coverage in the face of massive foreign medical bills often proves financially catastrophic for the unwitting traveller or their family.

Unfortunately, due to the extremely technical nature of insurance policy application forms and contracts, these financial catastrophes are a far too frequent occurrence. Any innocent error or omission when filling out the applicattion form can result in a denial of coverage and insurance companies love to deny coverage as much as they love to take your premiums. I highly recommend that you watch Marketplace tonight to gain some insight into what can go wrong when purchasing travel insurance.

Snowmobiling: Keep it Fun, Keep it Safe

It may be a bit late this year, but the winter snow has finally arrived, the toys are out, and I am once again reminded of the dangers that can be involved in snowmobiling.

We all know that it is important to put on a seat belt when getting into a car,  and that a person should not drink and drive.  However, for some reason not understood by me, these basic concepts fly out the window when it comes to getting on a snowmobile.

A snowmobile is a vehicle as defined by the regulations to the Motor Vehicle Act.

As such, operators of snowmobiles are obligated to comply with the terms of the Motor Vehicle Act and a person can be found liable for negligently driving a snowmobile.  While wearing a seat belt may not be required, driving with due care and attention is.

It’s time for people to start thinking about and applying these basic concepts.  All it takes is one bad decision that seemed harmless at the time.  That one bad decision can change a life forever.

Please, think before you jump on that machine after having a few drinks or racing down a back road.

Court of Appeal Confirms Test – When Should Disbursements For Expert Reports Be Allowed?

In Fan v. Chana, 2009 BCSC 1127, an infant Plaintiff went to trial and was awarded damages for her injuries in the amount of approximately $32,000 and, in the usual fashion, was entitled to costs with liberty to apply if circumstances warranted it. However, the Defendant in Fan had made a formal Rule 37B offer exceeding the judgment.

The trial judge ordered that the Plaintiff was entitled to costs to the date of the offer, except did not allow recovery of disbursements for two expert reports.  At trial, the judge found one expert report to be inadmissible because the doctor provided an opinion outside of her expertise as a psychologist.  Because of this, the report did not comply with the Rules.

The reason given by the trial judge in regards to the other expert report was that the facts on which the expert relied were not consistent with the facts he found at trial.  He critized experts for not digging deeper to clarify the facts they are basing their report on.  

The Plaintiff appealed the decision (regarding quantum and costs).  The Court of Appeal upheld the trial judge’s decision not to allow the disbursements for the first report but reversed the trial judge’s decision regarding the second report (Fan v. Chana, 2011 BCCA 516).

The Court of Appeal found that the trial judge had used the incorrect test in determining whether the cost of the expert reports ought to be allowed.  Madam Justice Levine for the Court of Appeal stated that:

the relevant time to consider whether it is reasonable to incur a disbursement is the time the disbursement was incurred.

It is much easier to understand why the costs/disbursements for a report of an expert who is opining outside of his or her area of expertise and found inadmissible won’t be allowed.  Presumably that would be known by the party as soon as the report is read.  However, counsel are not equipped with crystal balls to determine how the evidence will come forth at trial.  It might be entirely reasonable for the expert to rely on facts at the time that the report is written even if those facts are not ultimately accepted by the court.     

Also worth noting in this case is that the trial judge made his decision regards costs using the the inherent jurisdiction.  Although the Court of Appeal agreed that the trial judge had the right to invoke the inherent jurisdiction, it should only do so in circumstances not contemplated by the rules.  That was not the case here.  The trial judge ordered that the Plaintiff is entitled to costs until the date of the Defendant’s offer.  Using the inherent jurisdiction to depart from that would be going beyond the rules of court regarding formal offers.

Drivers Responsible for their Passengers, especially Children Passengers

As a driver, you have a responsibility for the safety and care of your passengers.

This responsibility is not only to drive with due care and attention, but also to take reasonable steps to prevent foreseeable injuries.

The duty owed by drivers to their passengers is especially strong for young passengers. In the Supreme Court of Canada case of Galaske v. O’Donnell, [1994] S.C.J. No. 28, the court ruled that children under 16, even though they may “contest it, do require guidance and direction from parents and older persons.”

The Supreme Court of Canada has ruled that the guidance owed to children 16 and under includes ensuring that they properly wear their seat belts. In British Columbia, our traffic laws go a step further and mandate that drivers must not drive a motor vehicle on a public roadway unless all their passengers are wearing seat belts or are secured in an approved and appropriate child restraint system.  Under the Motor Vehicle Act, drivers can be fined $167 if one of their passengers does not wear a seat belt.

In the Galaske case, the Supreme Court of Canada stated:

A driver taking children as passengers must accept some responsibility for the safety of those children. The driving of a motor vehicle is neither a God-given nor a constitutional right. It is a licensed activity that is subject to a number of conditions, including the demonstration of a minimum standard of skill and knowledge pertaining to driving. Obligations and responsibilities flow from the right to drive. Those responsibilities must include some regard for the safety of young passengers. Children, as a result of their immaturity, may be unable to properly consider and provide for their own safety. The driver must take reasonable steps to see that young passengers wear their seat belts. This is so since it is foreseeable that harm can result from the failure to wear a seat belt, and since frequently, a child will, for any number of reasons, fail to secure the seat belt.

The driver of a car is in a position of control. The control may not be quite as great as that of the master of a vessel or the pilot of an aircraft. Nevertheless it exists. Coexistent with the right to drive and control a car is the responsibility of the driver to take reasonable steps to provide for the safety of passengers. Those reasonable steps must include not only the duty to drive carefully but also to see that seat belts are worn by young passengers who may not be responsible for ensuring their own safety.

The above principles were recently considered and applied in the British Columbia case of Vedan v. Stevens, 2011 BCCA 386.

In Vedan v. Stevens, the driver operated a pick-up truck with one passenger inside the vehicle, and four children in the open bed of the pick-up truck. The children were not wearing seat belts, and the judge found that the children could have been seated inside the pick-up truck where there would have been enough seats and seat belts for all of the children. While driving, the children moved about the open bed of the pick-up truck with the driver’s knowledge. The driver had his windows closed, was chatting with the other passenger inside the vehicle and did not have a clear view of the children in the open bed. At one point, a 12 year old child who was riding in the open bed stood up and fell out on to the road. The child was severely injured as a result of the fall and was hospitalized for several weeks.

At trial, no witness gives evidence about what caused the injured child to stand up and fall out of the open pick-up. The trial judge apportioned 75% of the liability onto the driver as he take did take adequate steps to ensure that the children were safe, and further, he placed himself in a position where he was not able to adequately supervise the children. The initial trial judge also apportioned 25% of the responsibility for the injury on the injured child as he stood up in the open bed of the moving pick-up truck, and further he rode in the open bed without a seat belt despite having learned that he should wear a seat belt.

What is particularly interesting is that the trial judge’s decision was overturned on appeal. As it was not clear from the evidence if the injured child had stood up intentionally or even why the injured child had stood up, the Court ruled that the injured child could not bear part of the blame for his injuries. As such, the Court of Appeal varied the trial judge’s finding and placed 100% of the liability upon the driver of the vehicle.

The responsibilities of a driver for his or her passengers are well established. If you are driving with passengers, you must take steps to ensure that they are safe. This is especially true for young passengers.

 

 

Disbursement Loan Interest – Registrar Allows Only Partial Reimbursement

It is becoming more common for counsel to borrow funds from a lender to pay for the disbursements expended on behalf of the Plaintiff.  Whether the Plaintiff should be reimbursed by the Defendant for the interest on that loan has been the subject of recent debate and judicial consideration.  I expect that the recent decision of Chandi v. Atwell will serve to spark further debate. 

Our Court of Appeal in Milne v. Clarke found that interest charged in relation to MRI scans was allowable and confirmed that interest charged by a provider of services where the disbursement has been paid by the Plaintiff’s lawyer, the disbursement and the interest are recoverable if the disbursement is reasonable. 

In Basi v. Atwal (6 December 2010), Vancouver Registry No. M070135 (B.C.S.C.) Master Bolton (sitting as Registrar), allowed interest charged by lawyers pursuant to an agreement with their own bank.  We now have an additional case to consider.  In Chandi, Plaintiff’s counsel borrowed money from a private lender to cover the Plaintiff’s ongoing disbursements at an interest rate of 12% compounded annually.  It amounted to some $25,000.

Defence counsel argued that Basi should not be followed because doing so would result in “wild swings” in the interest rates from unconventional sources, an increase in the cost of litigation and the cost being too uncertain for Defendants (Chandi, para 72).

District Registrar Cameron acknowledged that he is bound by Milne but did not follow Basi.  He stated the following at paragraph 74:

In the law of costs it is still on the relatively rare case that full indemnity is provided to the successful party. Only disbursements that are necessary and reasonable in amount are recoverable.

In the end, District Registrar Camera made an allowance for the disbursement interest based on the rate that a Plaintiff would get when getting paid interest on special damages pursuant to the Court Order Interest Act.  He found that this would be the consistent way to do it unless doing that would result in a real hardship or unfairness in a particular case.

I suspect that we are going to see more of these challenges to see how Milne and Basi are applied.  If the interest rate charged by the bank is higher than the rate allowed pursuant to the Court Order Interest Act but is still reasonable, then why shouldn’t the Plaintiff get reimbursed?  Consistency has not been a requirement for allowing disbursements – only reasonableness.

This blog is produced by Waterstone Law Group LLP. This blog is intended for information purposes only and is not offered as legal advice for a specific claim. Subscription to or use of this site does not establish a solicitor – client relationship between the user and Waterstone Law Group LLP or any of the individual contributors. For advice relating to your personal injury claim, please contact us to arrange for a free consultation.