It’s often said that when it’s car vs. person, the car always wins. So does it follow that a driver who injures a pedestrian is automatically at fault? You might think so, but that’s not always the case.
We know that the safest place for pedestrians to cross is at a crosswalk. But in reality, people cross outside of designated crosswalks (jaywalk) all the time. Maybe the nearest crosswalk is too far, maybe they’re in a hurry, maybe traffic seems light and crossing between intersections looks safe. It doesn’t always work out though.
In British Columbia, driver’s and pedestrian’s rights and obligations are legislated according to the Motor Vehicle Act, RSBC 1996 c. 318
Crossing the street
The law says that when crossing the street at a place other than a crosswalk, the pedestrian must yield the way to the driver (s. 180). But even at a crosswalk, pedestrians must behave with common sense and caution.
Section 179 says that “a pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way”.
In a nutshell, a pedestrian stepping out in the path of a close or fast-moving vehicle can’t reasonably expect the car to stop in time to avoid a collision — even if he or she is at a crosswalk, with or without a walk light activated.
Just as pedestrians are expected to act with care, regardless of location, drivers have a duty to “exercise due care to avoid colliding with a pedestrian who is on the highway”, use the horn as a warning when necessary, and pay special attention to a child or an apparently confused or incapacitated person (s. 181).
The case law supports the legislation as well. Although drivers are most often found at fault, sometimes judges assign some responsibility to a jaywalking pedestrian. Meaning that as a pedestrian who has been injured in a collision with a motor vehicle, you might see your award reduced if you are found to have been at fault.
One example is Whelan v. BC Transit. In this case, the judge found the pedestrian 60% liable, and noted that “as a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong.”
In another case, Sandhu v. John Doe, the judge found the pedestrian “was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which [a defendant] was travelling, without looking to determine if a vehicle was approaching before entering that lane.” The pedestrian was assigned 75% of the liability.
Ultimately these pedestrians were awarded compensation for their injuries, however the award for damages was reduced by the percentage of their own contribution of liability.
ICBC will fight as hard as it can to ensure the driver isn’t found at fault. If you’ve been injured as a pedestrian, it makes sense to talk to a lawyer who can make sure you get the best representation and all the compensation you’re entitled to. A member of our team would be happy to meet with you for a free initial consultation.
Most of us are using social media in one way or another. Facebook, Twitter, Instagram and other forms of social media allow us to communicate with others and share details about our lives with just a click of a mouse or a tap of the finger. We have a strong tendency to post only happy photos and positive life events, sharing exciting news that we want our friends and family to know about. We rarely post about the tough moments, the struggles, or the mundane details. And therein lies the problem.
When we post only the positive, we create an illusion that we have it all together, and that our life is only happiness and joy. Great, right? Not so when you consider that insurers like ICBC routinely conduct cyber searches on claimants. The illusion of happiness and success can raise questions about the legitimacy of a claim, and the insurer could argue that photos and/or posts are documented proof that your life has not been significantly impacted by the injuries you’ve sustained!
Take for example, a recent client of mine who was involved in a motor vehicle accident. She sustained multiple injuries and suffered from chronic pain, depression, anxiety and post-traumatic stress disorder. As part of her “behavior activation therapy,” a psychologist recommended that she take active steps to pursue her interests. Being a gifted writer and photographer, the client started a blog. She took the blog very seriously, she wrote about events in her community and local interests that might appeal to her readers. She posted about taking her children to these events and having an amazing time.
The image my client portrayed online was a busy, active mom who was successful and socially engaged in her community. Of course, she appreciated from the outset that nobody would read anything from a “Debbie Downer” so she made every effort to keep her blog posts upbeat and positive. The reality, however, was that she often didn’t fully engage in these events, or she would leave early because the pain from her injuries, fatigue, and feelings of being overwhelming. It was a struggle for her to leave the house on certain days, but she didn’t write about these pain symptoms, and her readers never knew. With one click of her iPhone she had a photograph, and given her writing talent she had a compelling story.
At trial, ICBC argued that my client’s blog posts were evidence that she continued to be happy, social and active. They argued that any injuries she sustained in the motor vehicle accident had little effect on her lifestyle, that she was doing just great, and as a result any compensation ought to be very modest.
During the trial I explained to the judge that my client’s blog, Instagram, Twitter and Facebook posts were an “illusion.” My client was promoting a fun, active lifestyle to attract her readers, but she still profoundly suffered from her injuries.
In another case, during the 2012 trial of a young woman who had suffered neck and back injuries in a motor vehicle accident, ICBC argued that photos she posted on her Facebook page were evidence that her injuries did not limit her social activities. The photographs showed the young woman enjoying a weekend trip to Las Vegas with her friends. Although the judge didn’t give much weight to these particular photos, they were still taken at face value, as evidence of what the young woman could participate in.
It is important to recognize that anything you post online, including blog posts, comments and photographs, is potential evidence if the information is relevant to your injuries or to the issues at trial.
When considering the content you post online, particularly if you have an insurance claim against ICBC or a disability insurer such as BC Life, we recommend that you adopt a “less-is-more” attitude about social media (i.e. say less!!). If you do decide use social media, recognize that your posts will be taken at face value, so it is important that you remain authentic and stick as close to reality as possible. Don’t embellish or take creative license with the information you share. Further, resist the temptation to post complaints about your injuries and pain symptoms, which could be interpreted most unfavorably by a judge, making you appear focused on litigation and trying to advance your claim.
If you have questions about how social media evidence can be used in court, speak to your lawyer. You can also read our previous posts on the subject here: Your Facebook Profile as Evidence Against You (Part 1) and (Part 2).
Last month the British Columbia Supreme Court ordered ICBC to pay $350,000 in punitive damages to a woman that the insurance company wrongly accused of fraud – an amount that will ultimately come out of the pockets of ICBC’s policy holders.
The woman had fallen to the ground when a vehicle struck her husband in a crosswalk, nearly hitting her as well. The insurance company investigated her claim and accused her of submitting a false statement. They had the woman criminally charged with fraud, and attempted to interfere with the couple’s immigration application.
The woman’s charges were dropped on the first day of her criminal trial, but the damage was done. ICBC had attacked her credibility and her integrity, shaming her for making what turned out to be a valid insurance claim.
The timing of this court decision is unfortunate for ICBC. The insurance company recently launched an anti-fraud campaign, funded by its policy holders, and making bold allegations that up to 20% of all claims are fraudulent or exaggerated. In January, the insurance company released its top 6 fraud cases of 2015, what it calls “ICBC’s Hall of Shame.”
There is no denying that fraud is a problem in the insurance industry, but is it a problem big enough for an expensive media campaign? In an interview with Global News, a representative of ICBC admits that the vast majority of its customers do make honest claims. In fact, of the 900,000 claims that ICBC receives annually, only 100 or so actually lead to fraud convictions.
I’m now wondering why ICBC is using our monthly premiums to advertise its self-titled “Hall of Shame.” Only a small fraction of insurance claims are proven to be fraudulent, and as we’ve now seen, ICBC can easily get it wrong. Broadcasting these fraud cases will no doubt cast suspicion on otherwise innocent accident victims – people who don’t look injured, but may be suffering from soft tissue pain.
ICBC has a right and a duty to investigate fraudulent claims, but it must do so fairly and within reason, because ultimately it’s the policy holders who will pay the price.
One of ICBC’s key purposes and reasons for existence is to serve the residents of British Columbia, by providing compensation when someone is injured in a motor vehicle accident. The corporation does not serve the residents of this province when it uses tactics of intimidation to discourage civil claims.
– Justice Susan Griffin
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.