ICBC Liability (fault) Cases

How BC Rigged Fault Assessments For Crashes in the “No-Fault” Era

Written by ERIK MAGRAKEN on May 8, 2023. Posted in ICBC Liability (fault) Cases.

Should an insurance company be judge, jury and executioner for who is at fault for a crash? This is the system British Columbians basically now have.

First a quick history lesson.

It used to be that if you had a crash in BC ICBC would decide who was at fault. Their decision, however, had no binding effect because motorists had rights. They could bring a claim against each other. Whatever the Court ruled in terms of fault would be binding. This would override any internal ICBC decision. A fair and objective system.

This right, however, has now disappeared along with almost all other rights crash victims had as part of ICBC’s move to no-fault insurance.

Despite BC having a ‘no fault’ system fault still matters greatly. A wrongful assessment of fault can cost a driver over $8,000. Despite these steep financial consequences ICBC has basically rigged the system that their decision rules with limited exceptions.

Instead of having a two year limitation period to sue another motorist the new system gives you far less time. Under the Accident Claims Regulation this is cut down to 90 days after “a detailed assessment of responsibility” is made by ICBC.

From there, if you exercise your rights, the system has its thumbs on the scales. Instead of a clean fresh assessment on a balance of probabilities, you have to prove ICBC got it wrong. Basically its a judicial review instead of a fresh hearing. And here ICBC has rigged the law in their favour with you needing to prove that ICBC acted “improperly or unreasonably” in their decision. So you don’t just prove the other party is probably at fault, you have to prove ICBC did a terrible job in reaching their internal assessment.

This is all set out in section 10 of BC’s Accident Claims Regulation which now gives British Columbia crash victims the following burden of proof in fighting the monopoly corporation:

Matters required to be proven and onus of proof

10 In a claim concerning a determination by the Insurance Company of British Columbia of the extent to which the initiating party is responsible for an accident, the initiating party has the onus of proving both of the following matters:

(a)the Insurance Corporation of British Columbia acted improperly or unreasonably in assigning responsibility for the accident to the initiating party;

(b)the extent to which the initiating party is responsible for the accident is less than the extent of responsibility assigned by the Insurance Corporation of British Columbia.

To summarize, the average BC motorist must

buy your insurance from ICBC. There is no market choice.
If you are the victim of a crash you cannot sue the at fault motorist (except in the most limited of circumstances)
ICBC will decide if you are at fault or not
If they are wrong it can cost you thousands
If they are wrong you have very little time to challenge their decision and the challenge will not be a fresh decision but rather a review where you must prove that the insurer acted “improperly or unreasonably”.

Cyclist at Fault For Attempting To Pass Bus Re-Entering Flow of Traffic on the Right

Written by ERIK MAGRAKEN on March 16, 2021. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Courtenay Registry, dismissing a cyclist’s negligence action against a bus operator.

In today’s case (Coles v. British Columbia Transit Corporation) the Defendant was operating a bus and pulled over to let passengers on or off. At the same time the Plaintiff was operating a bicycle in the Defendant’s lane of travel. The Defendant put on her left signal indicating she was going to emerge back into the flow of traffic. The Plaintiff mistakenly believed the signal indicated the bus operator was going to make a lane change and attempted to pass the bus on the right hand side. This attempt failed and “he collided with the rear of the bus, came off his bicycle, landed on the ground, and broke his elbow.“.

The Plaintiff’s lawsuit was dismissed with the Court finding the bus driver did nothing negligent and fault rested with the cyclist. In reaching this decision Mr. Justice Baird provided the following reasons:

BC Court of Appeal Finds 60/40 Split of Fault Appropriate For Left Hand Turn Crash at Uncontrolled Intersection

Written by ERIK MAGRAKEN on October 29, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published this week by the BC Court of Appeal overturning a trial result and finding that a 60/40 split of fault was appropriate following a collision involving a left hand turning vehicle at an uncontrolled collision.

In the recent case (Randhawa v. Evans) the Respondent Evans was turning left at an uncontrolled intersection. There were three lanes in the opposite direction of travel. The traffic in the two lanes closest to the Respondent stopped. Believing the curb lane was clear the Respondent commenced a left turn. At the same time the Appellant Ms. Paul was travelling in the curb lane in the the opposite direction. She failed to realize the vehicles to her left had stopped to allow the Respondent to turn left. At the same time the Respondent failed to realize the Appellant was travelling int he curb lane and the vehicles collided.

At trial the REspondent was found 10% at fault for the crash with the Appellant shouldering 90% of the blame. The BC Court of Appeal found this apportionment was wrong and substituted a finding of 60% blame for the left turning vehicle and 40% for the ongociming Appellant. In reaching this liability split the Court provided the following reasons:

Motorist Who Had Seizure At Fault For Crash for Failing to Take Medication

Written by ERIK MAGRAKEN on June 12, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding a motorist solely liable for a multiple vehicle collision after losing control due to a seizure. While there can sometimes be no negligence in such a case here the Court found the Defendant failed to take prescribed medication and it was negligent for him to be operating his vehicle in the circumstances.

In today’s case (Goronzy v. Mcdonald) the Defendant was driving northbound across a bridge. Before reaching the crest of the south side of the bridge, he suffered a grand mal seizure, crossed through the yellow plastic pylons that separated the north and south bound lanes, and struck a taxi, as it travelled southward in the left lane.

It was alleged that the Defendant was not taking his medication contrary to medical advice and should have known he should not have been driving and should have foreseen a grand mal seizure. The Court agreed. In finding him liable for the crash Madam Justice Humphries provided the following reasons:

BC Court of Appeal – It Is Negligent To “Not See What’s There To Be Seen”

Written by ERIK MAGRAKEN on June 9, 2020. Posted in ICBC Liability (fault) Cases.

“I never saw the other vehicle before the crash” is rarely a satisfactory answer in absolving a party from liability. Reasons for judgement were published today by the BC Court of Appeal discussing this principle finding that it is reversible legal error not to consider if a party is liable for failing to see something that is there to be seen.

In today’s case (Sharma v. Kandola) the Plaintiff was injured in a two vehicle collision. At the time she was in the process of making a U‑turn from the south to the north side of the street in a school zone. The Defendant, who was travelling behind her, attempted to pass her in the westbound lane. The vehicles collided. The Plaintiff never saw the Defendant prior to the crash.

At trial the Court found the Defendant fully liable for “travelling too close to Ms. Sharma’s car and driving too fast, he failed to keep a proper look out, and he was attempting to pass Ms. Sharma’s vehicle in the westbound lane, an activity prohibited in a school zone“.

The Defendant appealed. The BC Court of Appeal found that the Defendant was largely to blame but the plaintiff also bore some liability for failing to see the Defendant prior to the crash. In reaching this decision the Court provided the following reasons:

Defendant Relying on “Waving” Motorists Still Found Liable For Crash

Written by ERIK MAGRAKEN on April 22, 2020. Posted in ICBC Liability (fault) Cases.

Relying on another motorist waiving you through an intersection is no defense to an allegation of negligence if the intersection is in fact not clear. Motorists must keep their own proper and clear lookout and relying on representations of others that ‘all is clear’ does not displace this duty. This principle was demonstrated in reasons for judgement published today by the BC Supreme Court, New Westminster Registry.

In today’s case (St Denis v. Turner) the Defendant was stopped attempting to turn left at an intersection. The first 2 of the 3 oncoming lanes of traffic had vehicles backed up at the intersection and these motorists apparently ‘waved on’ the Defendant. As he proceeded with his turn and entered the final oncoming lane the plaintiff drove into the intersection and a collision occurred. The Court found both motorists liable with the Defendant shouldering more of the blame. In finding that relying on ‘waving on’ motorists was no defence to negligence Mr. Justice Funt provided the following reasons:

Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

Written by ERIK MAGRAKEN on January 24, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane. As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.” The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane. In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson provided the following reasons:

Mother Found 50% at Fault For Striking Her Son With Vehicle

Written by ERIK MAGRAKEN on January 22, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing fault following the somewhat unusual fact pattern of a mother striking her own son with a vehicle.

In today’s case (Pringle v. Pringle) the Court described the circumstances and some of the evidence surrounding the collision as follows:

[2] The collision took place after midnight, in a roundabout driveway just outside Mr. Pringle’s apartment building. Mrs. Pringle had driven over to speak with Mr. Pringle. Mr. Pringle’s sister, Emily Pringle, accompanied her mother. The visit had not gone well. It ended when Mr. Pringle told his visitors to leave and threatened to call the police. They did as he asked, but Mrs. Pringle accidentally took Mr. Pringle’s keys with her when she left. They met in the driveway a short while later to return the keys.

[3] Immediately before the collision, Mrs. Pringle was at the wheel of her car with the ignition on. Emily was sitting in the front seat on the passenger side. Mr. Pringle was standing outside the car. Mr. Pringle and Mrs. Pringle were arguing through an open window.

[4] Mr. Pringle testifies that what happened next was that Mrs. Pringle began to drive away, circling the roundabout, while he was standing on the roadway. Mrs. Pringle was driving angrily and recklessly. When he realized that she was driving back towards him and was not going to veer away, he jumped and was hit by the moving car’s windshield.

The Court found both parties equally liable for the crash. In faulting both the driver and pedestrian Mr. Justice Gomery provided the following reasons:

Bus Driver Not Liable For Injuring Passengers By Braking Hard to Avoid Pedestrian

Written by ERIK MAGRAKEN on January 22, 2020. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, dismissing a negligence claim against a bus driver whose hard braking injured several passengers.

In today’s case (Clarkson v Elding) multiple plaintiffs sued for damages following injuries sustained while passengers on a bus. The Defendant operator “braked suddenly to avoid a collision with a pedestrian who was jaywalking across East Hastings.” The resulting force of the braking “caused many passengers on the bus, including the plaintiffs, to fall or be slammed against seats and/or other passengers“.

The claims were dismissed with the court finding no negligence in these circumstances. In reaching this conclusion Madam Justice Horsman provided the following reasons:

Police Officer in Pursuit Found Fully at Fault for Intersection Collision

Written by ERIK MAGRAKEN on September 18, 2019. Posted in ICBC Liability (fault) Cases.

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding a police officer fully at fault for an intersection collision with another motorist.

In today’s case (Burroughs v. Chiasson) the Plaintiff was an RCMP officer involved in a crash in 2013. At the time, while driving a fully marked RCMP vehicle, she “pursued a truck with an uninsured trailer by attempting to turn left, on a red light, onto Young Road from the westbound curb lane on First Avenue. While making this turn, she collided with a minivan driven by the defendant, Jennifer Chiasson. Ms. Chiasson was driving eastbound on First Avenue.”.

The RCMP officer sued the other motorist claiming damages from the collision. The claim was dismissed with the Court finding that the Plaintiff entered the intersection when it was dangerous to do so in circumstances with no particular urgency. In dismissing the claim and finding the officer fully at fault for the crash Mr. Justice Basran provided the following reasons: