ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘black ice’

Defendant Not Liable For Collision Caused By Black Ice

December 14th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.

In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.


BC Court of Appeal Dismisses "Black Ice" Claim

June 17th, 2008

Today reasons for judgment were released by the BC Court of Appeal dismissing the appeal of a very seriously injured Plaintiff who was involved in a single vehicle collision in 1998.

The Plaintiff was involved in a terrible motor vehicle accident. While driving from Tsawwassen to Vancouver on a January morning, his vehicle “left the road and overturned in the adjacent field. (he was) seriously and permanently injured, and had no recollection of the accident”.

There were, unfortunately, no witnesses to the accident itself.

When advancing a personal injury tort claim in BC, the Plaintiff has the burden of proof to prove why someone else is at fault for the accident. That is certainly difficult if the accident results in injuries that are so serious that they leave a person ‘with no recollection’ and even more difficult if there are no witnesses.

The Plaintiff sued the Ministry of Transportation and Highways and the contractor responsible for that particular stretch of roadway. The allegation was that they failed to adequately perform their maintenence duties. In other words, saying they should have and could have removed black ice from the scene of the accident.

The trial judge concluded that the Plaintiff failed to prove that the accident was caused by black ice and the claim was dismissed. The BC Court of Appeal dismissed the appeal concluding that “the trial judge made none of the errors alleged (on appeal). His findings of fact were well supported by the evidence.”

In reaching this conclusion the Court stated that:

The trial judge made no error by failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident. He considered the evidence for and against the appellant’s theory and determined that he had not proven, on the balance of probabilities, the essential fact that black ice was present on the highway, and therefore could not prove causation. The trial judge was under no obligation to compare the relative probabilities of the theories, and his conclusion would not have differed had he done so.

The Court does a good job in discussing the burden of proof in personal injury tort claims in BC. This case is a strong illustration of the fact that Plaintiff’s must prove, on a balance of probabilities, that someone else is at fault for their injureis to succeed in a tort claim in BC.

This case is certainly worth reading for anyone advancing a claim against the Ministry of Highways in BC alleging that they or their contractors failed to safely maintian the roads under their watch.