Taxi Driver found 10% At Fault For Leaving High Beams On

In a judgement released today by the British Columbia Supreme Court, Madam Justice Humphries concluded that a taxi driver was 10% at fault for 2 young girls’ injuries because he left his high beams on thus obstructing the view of on-coming traffic in the early morning of September 6, 2003 in Langley, BC.
The taxi did not hit the girls, rather, the taxi driver’s fault rested with the fact that he stopped his taxi on the side of the highway to engage some potential passengers in conversation with his high beams on. The passengers were a group of 5 young people who had left a party and were looking for a taxi ride home. The taxi driver declined to give this group of 5 people a ride because his vehicle only had 4 available seatbelts.
After being rejected by the taxi driver the young people headed back across the street into the lane of westbound traffic. Unfortunatley the driver of a vehicle driving in the westbound lane failed to see the people and struck 2 young girls with her vehicle.
The court found that the girls, the taxi driver, and the westbound vehicle were all partly at fault. In assessing 10% of the blame to the taxi driver Madam Justice Humphries stated “He did not keep a lookout for oncoming traffic and he left his high beams on. This constitutes a departure of the standard of care expected of a prudent driver and was a contributing cause of the accident.
If a person in British Columbia is partially to blame for an accident, it is important to seek compensation from all others who are at fault. Failing to do so will result in the Plaintiff receiving less than full compensation for injuries caused by the fault of others. This is called “several liability”. This decision is a great illustration of Plaintiff’s counsel seeking compensation from all those responsible for car accident related injuries. Had the taxi driver not been sued, on this reasoning, the young girls would have had the value of their claim reduced a further 10 percent.
Feel free to contact the author if you have questions about several liability and a current ICBC claim.

Buckle Up Or Pay the Price

Failing to wear a seatbelt can not only hurt you physically, it can hurt financially and I’m not referring to a traffic ticket.
A person advancing an ICBC claim who is injured through the fault of another motorist may be found “contributorily negligent” for failing to wear a seatbelt if it can be proven that injuries would have been prevented (or lessened) by the use of a seatbelt.
If a person advancing an ICBC claim is found contributorily negligent, the value of the ICBC claim goes down.
In these cases BC courts must apportion those injuries due to the failure to wear a seatbelt and deduct their value in compensating the injured person. Generally failing to wear a seatbelt results in reduction of the value of the claim by 15% – 25%, although the range of apportionment varies and can exceed this range.
When dealing with ICBC, it is important to keep in mind that failing to wear a seatbelt does not automatically reduce the value of the claim. It is for ICBC (or the insurance company / lawyer for the at fault driver) to prove that failure to wear a seatbelt caused or contributed to the injuries. Justice Fulton, the case Gagnon v. Beauliew, summarized the law as follows “In the case of this particular form of contributory negligence, the onus is on the defendant to satisfy the court, in accordance with the usual standard of proof, not only that the seat belt was not worn but also that the injuries would have been prevented or lessened if the seatbelt had been worn”
Also, there are some limited circumstances where failing to wear a seatbelt does not amount to negligence such as when a person has medical reasons making wearing a seatbelt unreasonable.
Circumstances excusing people from wearing seatbelts are the exception, not the norm so consider buckling up, failing to do so can not only add to your injuries, it can subtract from your pocket-book.

Who's That in the Bushes? ICBC Surveillance and You

A concern many BC personal injury clients have is the threat of surveillance when they are advancing an ICBC injury claim. Video surveillance is legal in British Columbia so this threat is real.
The thought of video surveillance is unsavory to say the least.  What concerns me, however, is not that ICBC may be conducting video surveillance, rather the misconseption that some BC personal injury claimants have regarding their behaviour and potential surveillance. I have been asked many times “Should I watch out because there may be surveillance” or “Should I limit my activities out in public because if I get filmed being active that will hurt my claim“.
My answer to this question is as follows: Video surveillance does not hurt a personal injury claim, overstating the effects of injuries does. It does not matter if you’re painting your house, lifting weights, or doing any number of physical activities that are caught on film. If you can be active and not aggravate your injuries that is a good thing. If, on the other hand, a personal injury claimaint tells others that they are limited and video surveillance shows otherwise, that could be very damaging. This goes to a person’s credibility. If a person is caught in a lie with respect to the effect of their injuries that will have a very negative effect on the value of an ICBC claim.
I like to assure people advancing ICBC claims that they need not live life any differently because of an ICBC claim or because of the threat of video surveillance. It is lies and lies alone that have the most damaging impact on a personal injury claim. If you are honest about your injuries and their impact on your life video surveillance should not be a concerning threat.  In fact, with an honest plaintiff, video surveillance should appear as nothing more than an unsavory insurance tactic.

Expert Witness Crosses the Line

Expert witnesses play a vital role at the trial of ICBC injury claims. Often judges or juries require the input of a qualified expert to help make sense of technical facts. No where is this more obvious than in ICBC injury claims where doctors give the court opinion evidence with respect to injuries, their causes, their treatment and prognosis.
Expert witnesses, doctors included, have a fundamental duty to be neutral and independent. It has been held that “expert evidence presented to the court should be, and should be seen to be, independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters withing his expertise.”
Experts owe the same duty to the court whether they are testifying on behalf of the Plaintiff, the Defendant or if they have judicially appointed. However, in some cases, experts hired by one side of a lawsuit forget or ignore their duty and engage in active advocacy. In other words, they go out of their way to fight for one side in the lawsuit. This is indeed a shameful development which does nothing but cloud the issues in a lawsuit.
When experts cross the line, they run the risk of having their opinions totally disregarded or declared inadmissible. A great illustration of this can be found in the recent judgment of The Honourable Madam Justice Martinson in which she declared that the report of a psychiatrist hired by the Defendants in a lawsuit was inadmissible.
She concluded that the expert stepped into the shoes of the jury while advocating for the Defendant. He “stepped outside of his area of expertise, commented on matters of general knowledge that the jury can determine, provided many opinions on credibility and made editorial comments, did not seperate his opinions from the fracts and assumptions he relied on, and engaged in advocacy“.
The judge went on to exclude the psychiatrists report from trial on the basis that he crossed the line and engaged in advocacy. In ruling the psychiatrist’s evidence inadmissible Madam Justice Martinson concluded that the doctor had a “lack of understanding of his role as an expert witness“.
Has ICBC sent you to a doctor that was not impartial and ‘crossed the line”? If so you can contact the author of this article for a free legal consultation.

"When Should I Go Back To Work?"

A frequent question I encounter as a British Columbia personal injury lawyer is “when should I go back to work?” or “If I go back to work now will I hurt my ICBC claim?”.
The short answer is that going back to work rarely hurts an ICBC claim. Working is a good thing. Plaintiffs in personal injury claims have a duty to mitigate their damages. This means that they are required to take reasonable steps to minimize their losses as a result of an accident.
Keeping in mind the duty to minimize losses, the question of returning to work is best directed at a physician. The answer it seems, comes down to “Hurt vs. Harm“. Returning to work can be unreasonable if doing so aggravates accident related injuries. That is, if the physical or psychological demands of a job actually aggravate accident related injuries then returning to work is typically not recommended. If, on the other hand, working with your injuries causes pain but your physician tells you to work through the pain as best you can tolerate then returning to work (or at least trying to) seems like a sensible option.
A personal injury claim should never motivate a person to miss time from work. Unreasonably missing time from work can actually hurt a claim. Returning to work while still injured, if medically approved, not only demonstrates a good work ethic but can also fulfill a legal duty to “mitigate damages” and that certainly does not hurt a claim.
Do you have questions about a wage-loss claim? You can click here to contact the author for advice.

Plaintiff Awarded $173,000 for Physical and Psychological Injuries

In a judgment released today by the British Columbia Supreme Court, a plaintiff was awarded a total of $173,442.92 for her damages and loss as a result of a 2004 motor vehicle collision.
The Plaintiff was involved in a fairly serious rear-end collision while stopped at a red light. The Plaintiff’s vehicle was struck by a tractor-trailer causing significant damage to the Plaintiff’s vehicle.
The Plaintiff’s injuries included a soft-tissue injury to her right shoulder, sternum, rib cage and lower abdomen, as well as a mysofascial sprain affecting the neck, shoulders, and posterior cervical spine. She went on to develop myofascial pain which her treating physiatrist described as a ‘complicated
chronic pain syndrome”.
In addition to these physical injuries, evidence was presented that the Plaintiff suffered from a Panic Disorder and a Post-Traumatic Stress Disorder (PTSD) as a result of the collision.
The trial judge concluded that the injuries resulted in a partial disability which was likely going to continue into the forseeable future.
The assessed damages included $81,000 for pain and suffering, $22,700 for past wage loss, $60,000 for loss of earning capacity, $5,130 for housekeeping services, just over $1,000 for past expenses and $3,549 for future care.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

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