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personal-injury

Personal Injury Basics: Fault Matters – no matter what the other driver tells you

As we know, fault is the name of the game in compensation for civil personal injury claims.  If you want damages for something (such as for your injuries suffered in a car accident), you have to show why the other party involved caused you to suffer a loss.  Just being hurt is not enough.  Causation is key.  Entire trials are run just to determine who caused what damage, separate and apart from determining what the damage actually is.

If you are stopped at a red light and the evidence is that you were rear-ended by a speeding driver, your legal position is obviously very strong, and any damages you can prove will be easier to demand from the other side during litigation or settlement negotiations.  But if the evidence is that you were the careless driver, then don’t expect ICBC to pay much for your injuries that resulted from the crash.  They will say that you were the author of your own misfortune.      

But those are extremes.  Fault is often the subject of debate – such as in cases where the car accident is the result of a left turn or a lane change.  In cases like these, legal fault is less clear and it’s the discovery of all the facts that governs the outcome of the case.  For example, it would be important to know things like, how fast was each car going?  Are there any witnesses who can advise on how the accident took place?  Is there any video showing the accident?  Which motorist is worthy of blame for the accident?  Or, if both of them are, which motorist is worthy of more of the blame?  At trial, if the court rules that the plaintiff driver is 25% to blame for the accident and the defendant 75%, then obviously the plaintiff can only be awarded 75% of the value of his or her proven damages.

Sometimes a person might say, “I was in an accident.  But the other driver came up to me after the crash and kept apologizing, so he should be at fault.”

Not so fast.  While the testimony of what witnesses will say can be evidence of some things, the law will not allow apologies to be evidence of fault.  It’s codified in a statute called the Apology Act.  The court will not care about who apologized for what after an accident, no matter how polite the defendant was at the scene.  The court will want evidence of facts respecting how the accident took place.

So fault matters.  The exception is when you are trying to obtain accident benefits under your insurance contract with ICBC – such as payment of reasonable medical expenses.  Those benefits are generally payable regardless of who caused the accident.  They are also known as “no fault” benefits.   

If you are injured in a car accident, tell us everything about how it took place.  Contact us and we’ll advise on the nature of your claim.

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ICBC Breach

False Statements and ICBC

“ICBC says I gave a false statement.  Can they breach my insurance?”

One way in which ICBC can treat you as being in “breach” of your auto insurance is if they think you provided a false statement.  For example, if you get into an accident but misrepresent the truth of what happened to ICBC, they may have grounds to deny you insurance coverage respecting any damages (to persons or property) that you have caused with your vehicle.

There are certain principles governing the definition of a false statement.  ICBC must prove that what you said was a “wilful false statement.”  They must prove that the statement was done intentionally, knowingly, and purposely, without justifiable excuse.  They must also prove that the statement was material to the management or payment of the claim by being capable of affecting the mind of the insurer, either in the management of the claim or in deciding to pay it.  The involvement of alcohol, for example, will likely be material to ICBC and affect the handling of a claim.

Not everything will constitute a false statement, however. A statement made carelessly, thoughtlessly, or inadvertently is not necessarily false. Same goes for if the insured who provided the statement had an honest belief in the truth of the statement’s contents.

Keep in mind that if you are involved in an accident, section 73 of the Insurance (Vehicle) Act Regulations requires the insured to provide prompt written notice of the circumstances of the accident. If you want advice on how to report an accident, contact the lawyers at Filkow Law.

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ICBC Breach

ICBC Breaches

The lawyers at Filkow Law have acted for thousands of drivers in British Columbia in cases such as drinking and driving, driving while prohibited, hit and runs, and all types of Criminal Code and Motor Vehicle Act cases. In many of these cases our clients have been involved in accidents and where injuries have occurred to them and to the other parties and ICBC becomes involved.  Apart from the consequences of the criminal or driving court matter itself, ICBC is a very big issue. That is, ICBC will say the driver had no insurance because he was drinking and driving, or left the scene, etc.  As a result, we have become very experienced and successful in handling insurance (ICBC) breach cases.

If ICBC suspects that you were in breach of your insurance policy at the time of an accident they will be quick to deny you coverage.  ICBC can deny your coverage for a number of reasons, from drinking and driving to making a misleading statement to an adjuster. This leaves you liable for the damage and injuries to both yourself and others caused by the accident.  A breached ICBC policy is extremely costly, both financially and emotionally, and can put you and your family in an incredibly stressful situation.  The burden, however, is on ICBC to prove that you breached your insurance policy. Even if they are successful in proving the breach, they still have to collect the settlement from you.  You should not accept a breach, or enter into a payment plan, without talking to a lawyer.

Why is it difficult for ICBC to prove you were in breach of your policy?  Take for example, a situation where you are suspected of drinking and driving and causing an accident.  You may be charged criminally at the scene for impaired driving, or you may fail a breathaylyzer at the scene and be given an immediate roadside suspension.  In either of these scenarios, it is almost certain ICBC will say you are in breach.  Even if you successfully fight the charge or dispute the prohibition, ICBC will likely breach you by relying on the officer’s’ evidence from the scene.

The burden, however, is on ICBC to prove your breach is higher than a simple suspicion that you were drinking.  ICBC must show that, more likely than not, you were incapable of properly controlling your vehicle and that caused the accident.  The law is well established and goes back to the 1960s, where in Union Insurance Society of Canton Limited v. Andre Arenault, 1961 CanLII 83 (SCC), the Supreme Court of Canada stated:

In my view there is a wide difference between being likely to drive improperly and being incapable of driving properly.  Every driver who is under the influence of liquor to the point of being incapable of proper control is certainly impaired, but in my opinion it does not follow that every impaired driver is necessarily incapable of proper control.

This was quoted in a 1980 case called Kim v. Insurance Corp. of British Columbia (1980), 21 B.C.L.R. 18 (S.C.) which added:

In terms of the clear distinction drawn by those words it would be necessary for the defendant to prove that the plaintiff’s state went beyond impairment to a point where he was incapable of driving properly.  It necessarily follows that the state of incapacity cannot be established by the mere proof that the breathalyser reading exceeded .08.

A failed breathalyzer test is simply not enough evidence for ICBC to prove that you were incapable of driving when the accident occurred. There must be other evidence of intoxication, such as witnesses at the scene, or an expert stating in court that your blood/alcohol level at the time of the accident would have left you incapable. 

An ICBC insurance breach is serious.  It can leave you owing ICBC hundreds of thousands of dollars and without a license until you pay. Even where a breach is established there are many strategic and effective legal avenues to take advantage of.  If ICBC has told you they are considering breaching your policy you should consult a lawyer immediately to discuss your options.

The lawyers at Filkow Law have decades of experience assisting drivers with criminal charges, roadside prohibitions and the ICBC breaches that can result.  Call 604-558-6678 today for a free consultation.

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