Recent Court of Appeal Ruling on Uninsured Motorist Benefits

Earlier this month, the Court of Appeal released its decision in Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289 .  In that case, the court considered the availability of uninsured motorist benefits pursuant to section 20 of the Insurance (Vehicle) Act.

In British Columbia, all motorists are required to carry at least a minimum amount of third party liability insurance.  This means that when someone is injured as a result of a negligently operated motor vehicle, the injured party can almost always count on a pool of funding to be available from which they may recover an award of damages.  Section 20 of the Insurance (Vehicle) Act essentially acts as a failsafe in our mandatory insurance regime – for those rare cases where the motorist is uninsured, the injured party may make a claim for Section 20 benefits to fill in the gap where recovery from the negligent motorist is not possible.  However, as this case shows, Section 20 benefits have their own limitations to be aware of.

Section 91 of the Insurance (Vehicle) Act limits recovery in certain cases:

Limitation on recovery in relation to stolen vehicles

91 (1) This section applies to a person who

(a) suffered bodily injury, death or loss of or damage to property that is caused by the use or operation of a vehicle, and

(b) at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.

(2) Despite the Negligence Act and section 100 of this Act,

(b) a person referred to in subsection (1) is not entitled to any recovery from the corporation under section 20.

Essentially, an injured party is barred from making a section 20 claim if they were a passenger in a vehicle that they knew, or ought to have known was being operated without the owner’s consent.  In this case, ICBC was successful in arguing that the plaintiff was not entitled to section 20 benefits.  At the time of the accident, she was 17 years old, and was a passenger in a vehicle driven by a 15-year-old.  At trial, the judge found that because of the plaintiff’s young age, she couldn’t have turned her mind to whether or not the vehicle was driven without consent, and therefore she was not barred from recovering pursuant to section 20.

The Court of Appeal disagreed, and found that a reasonable person in the plaintiff’s circumstances ought to have known that the vehicle was driven without consent.

This is an important case, as it clarifies the test to be followed when considering the section 91 exception.  The court is to follow an objective approach, considering what a reasonable person in the plaintiff’s circumstances ought to know, as a opposed to the subjective approach employed by the trial judge.

Plan Ahead! Consider Additional Disability Coverage through ICBC

If you are involved in a motor vehicle accident and cannot work, the typical maximum rate payable by ICBC for TTD (temporary total disability) benefits is only $300 per week.  Every driver in BC has access to this coverage as a matter of law; however, the benefit amount has not been increased for over 25 years!  As I have written in an earlier entry, it is nearly impossible to make ends meet on that kind of money, especially if you are paying out of pocket for treatment costs.

Few people are aware of this, but it is possible to purchase extra disability coverage from ICBC.  Some of us here at the firm buy this extra coverage every year when renewing our vehicle insurance.  You can increase your TTD rate from the typical $300 per week up to $700 per week by purchasing Income Replacement Policy APV197.  An additional coverage of $400 per month costs $84 per year.  It’s a great value.  There is very little information online regarding this extra coverage, so we recommend that you discuss this with your broker the next time you renew your insurance.

If you are involved in a motor vehicle accident in British Columbia, contact one of our Victoria Lawyers today.

Driver takes ICBC to court to keep his safe drivers discount – and wins.

An interesting decision was released today by the British Columbia Provincial Court.  In this case, a driver was deemed by ICBC to be at fault for an accident that occurred when his vehicle struck a rock in the middle of the roadway.  ICBC made payments to an injured passenger, and repaired the vehicle, making both payments pursuant to the driver’s collision coverage, as opposed to paying “no-fault” benefits to the passenger, and paying out the repairs under his comprehensive insurance policy.   The upshot of ICBC’s determination,  was that the driver would lose his safe-driving discount, and would have to pay increased premiums.  He decided to fight this determination in court, and was successful.

Read moreDriver takes ICBC to court to keep his safe drivers discount – and wins.

Court of Appeal Decision Places Heavy Burden on Cyclists Passing On the Right

Earlier this month, the British Columbia Court of Appeal released its reasons in the case of Ormiston v. ICBC, 2014 BCCA 276.  In this case, an injured cyclist was found totally at fault for an accident that occurred while the cyclist was passing a vehicle on its right, contrary to the Motor Vehicle Act.  As a cyclist myself, I agree that cyclists must endeavour to follow the rules of the road – however, this case highlights problems with the legal framework that governs how motorists and cyclists are to share the road, and the associated problems in adjudicating negligence cases involving cyclists.

Read moreCourt of Appeal Decision Places Heavy Burden on Cyclists Passing On the Right

Illegal Income in a Personal Injury Claim

In a personal injury action, the injured party can claim against the defendant for both past income loss (being their actual lost income up to the date of the trial), as well as for potential future lost income earning ability (called a “loss of capacity” claim).  In both cases, the plaintiff must satisfy the court on a balance of probabilities that they have suffered these losses, as well as the amount of the loss.  In many cases, past wage loss can be a simple calculation – for example, a plaintiff can use pay stubs, or income tax returns to show how what their earnings were up to the accident, and can readily calculate how much income was lost – for example, if the plaintiff earned $600 a week, and was off for two weeks, their lost income is easily calculated to be $1,200.   Bringing a claim for lost income can be tricky if your income comes from more unorthodox sources.

Read moreIllegal Income in a Personal Injury Claim

Traumatic Brain Injury and Homelessness

A recently published Canadian study reveals a frighteningly high correlation between homelessness and traumatic brain injury.  This study was funded by the St. Michael’s Hospital Head Injury Clinic in Toronto, the Canadian Institutes of Health Research and the Ontario Neurotrauma Foundation.

Read moreTraumatic Brain Injury and Homelessness

Injured, Poor, and Living Off of ICBC Benefits

Parties injured in a motor vehicle accident in BC have access to no-fault disability benefits and payment of some treatment costs through ICBC.  If the injuries were caused by another driver who as at fault, the injured party can bring a lawsuit to recover their additional losses.  In reality, this can play out very differently for individuals, depending on their economic status.  Parties that were barely scraping by before suffering injuries in a motor vehicle accident, are at a comparative disadvantage to those parties that have access to savings or outside streams of incomes, due to a number of compounding factors.

Read moreInjured, Poor, and Living Off of ICBC Benefits

Calculating ICBC Disability Benefits

If you are injured in a motor vehicle accident in British Columbia that prevents you from working, you may be entitled to disability benefits, even if the accident was your fault.  This is because in British Columbia,  we have a “no-fault” benefit scheme which provides wage loss benefits, death benefits, and medical benefits that are available to most people injured in a motor vehicle accident in BC (and for BC residents injured in the states, or elsewhere in Canada).  These benefits are set out in Part 7 of the BC Insurance Vehicle Regulation (which is why sometimes they are referred to as “Part 7 Benefits”).

Read moreCalculating ICBC Disability Benefits

Wildlife Collisions and ICBC Cases

Small business law advice from Velletta

Collisions with wildlife are an unfortunate reality for motorists in British Columbia.  According to some statistics, in an average year in BC, four people are killed, 384 motorists are injured, and at least 6100 animals are recorded as killed.   Here in Victoria, the abundance of deer on the roadways has resulted in some municipalities proposing drastic measures.  In personal injury lawsuits, ICBC adjusters and defence lawyers often seek to deny compensation to parties injured in a collision involving wildlife by claiming that the accident was “inevitable”, and not the result of any driver’s negligence.  However, each case turns on its own facts.

Read moreWildlife Collisions and ICBC Cases

Special Considerations for New Mothers in Personal Injury Actions

Family law, Velletta & Company, Victoria, BC

Our office recently resolved an ICBC claim for a young woman who suffered soft-tissue injuries in a motor vehicle accident while she was five months pregnant.  Of particular interest in this case was the calculation of a non-pecuniary damage award (sometimes called “pain and suffering” damages).

Read moreSpecial Considerations for New Mothers in Personal Injury Actions

ICBC Motor Vehicle Accidents and WorkSafe Claims

Immigration law, Velletta & Company, Victoria, BC

If you were injured in a motor vehicle accident while at work, you may be barred from bringing a lawsuit to claim compensation for your injuries. If you fall into this category, it is important that you understand your rights, and the rules that apply to you.

Read moreICBC Motor Vehicle Accidents and WorkSafe Claims

“In-Trust” Claims – Compensation for Family Caregivers

Following a serious accident, it is often necessary for people suffering from an injury or a disability to rely on those close to them to lend a helping hand in the form of nursing services and household duties like cooking and cleaning, and driving.  If you are lucky, you will have an army of close friends and family members reaching out to lend a helping hand.  As a society, we rely on the unpaid labour of these unsung heroes to lend a helping hand and into pick up the slack where our public health system lets off.    For those that are injured as a result of somebody else’s negligence, it is possible to claim compensation in a personal injury lawsuit to compensate close family members for their efforts.  Often a personal injury can be devastating and disruptive to entire families, and it is important that this form of compensation is not overlooked.

Read more“In-Trust” Claims – Compensation for Family Caregivers

“Hit and Run” accidents and ICBC

In an ordinary personal injury lawsuit,  the plaintiff will need to know who is responsible for their injuries, so that the court can find that party responsible.   For example, if you were badly injured by a passerby who strikes you with their umbrella, and flees the scene, you may find yourself in the unfortunate position that you won’t be compensated for the pain and suffering, lost wages and expenses you might suffer from your injuries.  Thankfully, our laws in British Columbia do provide some protection to individuals who are injured in a “hit and run”, that is, by a negligent motorist who feels the scene of the accident and remains unidentified.

Read more“Hit and Run” accidents and ICBC

What are Court Costs?

Partnership and business law, Victoria BC , Velletta & Company

Most British Columbians who pursue their personal injury claims through a lawsuit will do so with the assistance of legal counsel.  Legal fees are typically very expensive.  The vast majority of injured plaintiffs will hire a lawyer on a contingency fee basis, meaning that they will be paid a percentage of the total settlement or judgment, and usually the lawyer doesn’t get paid until the case is over. As a personal injury lawyer, clients will often ask me, “Can I sue ICBC or the other party for all of my legal costs?”  My answer to this question is as follows: not really.

Read moreWhat are Court Costs?