Tag: single vehicle accident

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.

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

BC Supreme Court awards $229,890 for Concussion and Chronic Back Pain

In written reasons for judgement released today, a Plaintiff who was injured in a 2003 single vehicle accident was awarded a total of $229,890 for his injuries and losses.
The Plaintiff, who was 18 at the time, was the centre passenger in a pick-up truck that lost control. The accident was significant. The truck “crossed a cattle guard and then hit loose gravel. The Driver lost control and the truck slid off the embankment. It rolled a number of times and apparently flipped end over end once. In ended up lying on its right side.”
For a time, the Plaintiff lost consciousness. He suffered a concussion and for a while suffered symptoms of headaches, light headedness, imbalance and tinnitus (ringing in the ears.) These symptoms resolved by the time of trial. He also had a neck injury which largely resolved and a shoulder injury which fully resolved by the time of trial.
The Plaintiff’s main injury by the time of trial was chronic low back pain.
4 doctors testified on the Plaintiff’s behalf. His family doctor painted a positive picture of the Plaintiff.
A specialist in physical medicine and rehabilitation (physiatrist) testified that the Plaintiff suffered from a soft tissue injuries to the cervical and lumbar spine (neck and low back).
A rheumatologist testified that the Plaintiff suffered from chronic back pain and that this pain “would have a significant negative influence upon his ability to compete in the workforce in the area of strenuous laboring jobs.”
A specialist in occupational medicine testified that the Plaintiff had not recovered from the soft tissue injuries to his back and that “it is unlikely the Plaintiff will have full resolution of his back injuries“.
The defence had the Plaintiff assessed by an orthopaedic surgeon. This is a common choice of ICBC for their ‘independent medical exams” when dealing with soft tissue injuries. The doctor hired by the defence testified that one of the factors leading to the Plaintiff’s ongoing complaints was ‘psychosocial factors‘ and that he would ‘strongly recommend that the plaintiff be assessed by a psychiatrist“.
The court preferred the evidence of the Plaintiff’s physicians and stated that “I conclude there is little, if anything, in (the defence doctors) report that would detract from the evidence from the other medical personnel or the lay witness evidence with respect to the Plaintiff’s present condition“.
In the end, damages were assessed as follows:

Non-Pecuniary Damages

$ 85,000

Past Wage Loss

$ 23,000

Future Wage Loss

$120,000

Cost of Future Care

$ 1,890

Total:

$229,890

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

Disclaimer