ICBC Injury Claims and Effective Cross Examination

Reasons for judgement were released today showing how an effective cross examination of a Defendant can make all the difference in the prosecution of an ICBC Injury Claim.
In today’s case (Mclaren v. Rice) the Plaintiff was involved in a single vehicle accident in February, 2005.  The Plaintiff was a passenger.  The Defendant lost control of the vehicle and left the roadway.  The Plaintiff was injured in this collision.  There were no witnesses to the crash itself and the Plaintiff’s injuries were so severe ( a closed head injury and a fractured skull) that he had no memory of the accident.  The Defendant denied that he was at fault for losing control of the vehicle.
Just because a driver loses control of a vehicle does not automatically make him at fault for the accident.  The Plaintiff still has to prove his/her case on a ‘balance of probabilities‘.   So how then, can a plaintiff with no memory of what happened, with no witnesses and with a defendant who denies wrongdoing prove his case?  Some of the tools that can be used are pre-trial discovery and cross examination.  Today’s case demonstrates that the lawyer involved effectively used these tools to prove that the Driver was responsible for losing control.

Mr. Justice Brooke found that the Defendant driver was at fault.  In reaching this conclusion the Court highlighted serious damage done to the Defendant’s position through cross-examination.  The Plaintiff’s lawyer was able to pick apart the Defendant’s in court evidence and the effect of this was a winning case for the Plaintiff.  Following the Defendant’s cross examination Mr. Justice Brooke reached the below conclusions about his credibility:

[24] There are significant inconsistencies and contradictions between the evidence given by Jacob Rice at trial and prior unsworn statements given by him and prior evidence given under oath. It is, of course, the evidence given at trial that I must assess, and those prior inconsistent statements go to the credibility of Mr. Jacob Rice. I find that Jacob Rice is an unreliable witness and that the inconsistencies and contradictions diminish such weight as his evidence might have had. I find that the events immediately preceding the accident are not clear in Jacob Rice’s mind because he was either asleep or inattentive as the truck proceeded across the oncoming lanes of traffic. There were no brake marks or any indication that evasive action was taken until the truck “hit the ditch”. I find that what Jacob Rice told ICBC in his statement taken on March 8, 2005, is likely what happened:

It was a pull to the left and then, I just hit the ditch and as we hit the ditch, I tried pulling it to the right and it lost control and, and spinning and from there, it just lost control.

(Emphasis Added)

[25] I find that Jacob Rice failed to apply the brakes in a timely fashion and that he failed to divert the course of the truck so as to avoid the accident which occurred. Whether he fell asleep or was merely momentarily inattentive, his conduct was negligent.

credibility, cross examination, icbc injury claims, inevitable accident, Mclaren v. Ross, Mr. Justice Brooke, negligence, single vehicle accident

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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