December 21st, 2010
As a monopoly insurer ICBC usually fulfills 2 roles in BC auto injury claims. ¬†First ICBC is responsible for processing claims for Part 7 Benefits. ¬†Second ICBC is usually behind the defence of tort claims against at fault motorist in British Columbia. ¬† For anyone involved in a BC vehicle collision it’s important to appreciate this dual role before contacting ICBC to discuss your claim. ¬†I discussed this earlier this year in the below video:
Since ICBC is in the business of defending tort claims you need to be aware that statements you make to your adjuster can be used against you in your personal injury trial as ‘admissions against interest‘. ¬†Reasons for¬†judgement¬†were released today by the BC Supreme Court, New Westminster Registry, demonstrating this.
In today’s case (Cross v. Cross) the Plaintiff was involved in a 2008 collision. ¬† Both the Plaintiff and Defendant were insured with ICBC. ¬† The Plaintiff was disabled from work for several months following the collision. ¬†He dealt with ICBC directly following the crash and discussed his injuries and disability.
At trial ICBC’s adjuster testified about these discussions in support of an argument that the Plaintiff’s wage loss was not entirely due to the collision but also due to other factors. ¬†Mr. Justice Williams rejected this submission and awarded the Plaintiff damages for his wage loss claim.
Despite the lack of success behind the adjusters evidence, this case demonstrates that ICBC adjusters can and do use statements made by individuals against them in the course of a personal injury lawsuit. ¬†The Court provided the following reasons addressing the Plaintiff’s wage loss claim and the adjuster’s evidence:
¬†¬†¬†¬†¬†¬†¬†¬†¬†There was another point raised by Ms.¬†Chiasson that is relevant to the issue at hand. She reports that, at or near the conclusion of the program, she ‚Äúdiscussed return to work plans with Russell and he stated at the present time he does not have transportation to his pre-injury employment and therefore has not contacted his employer regarding a return to work.‚ÄĚ
¬†¬†¬†¬†¬†¬†¬†¬†¬†This is something of a recurring theme for the defence. The insurance adjuster who had conduct of the file testified as to a conversation that she had with the plaintiff, enquiring about his status and his return to work. She says he told her he was not back at work and when she asked why, part of his answer was to the effect that he didn‚Äôt have transportation to get there. He also made reference to his doctor‚Äôs advice…
 Finally, there is the matter of the plaintiff having told Ms.¬†Chiasson and the adjuster that getting to work would be a problem. I accept that there were conversations of that general tenor. However, I also accept the evidence of the plaintiff that he had the means available to him to get to work. The reason he didn‚Äôt go back was because his injuries were still active to an extent that they rendered him unable to do the physical work his job required…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In view of the findings I have made, it follows that the plaintiff is entitled to recover his wage loss from the date of the accident through to the point in time that he returned to work, June 1, 2009.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Counsel have agreed that the quantum of that loss is $35,767.