Photo: Thinkstock.com

If you imagine being in a minor car accident you probably don’t think about getting injured. Accidents happen all the time and the good news is that in most minor accidents, people don’t get injured. However, sometimes even small collisions do cause injury. If you sustain a serious injury as a result of a minor collision (also known as a low velocity impact or LVI collision) don’t be surprised if ICBC is not cooperative in settling your claim. To the insurance industry, significant injuries caused by low velocity impact (“LVI”) collisions seem to be as imaginary as the characters in my daughter’s upcoming play, Alice in Wonderland. As a result, settling LVI claims are often fraught with difficulty.

ICBC has had an LVI program since 1992. The program was apparently introduced for the purpose of reducing the cost of adjusting claims in minor motor vehicle accidents. Essentially, an accident would be classified by ICBC as LVI (referred to as a Minor/No Damage (“MND”) claim until 1999) if it occurred with an impact at 8 kilometers per hour or less. Unfortunately, where the accident is classified as LVI, your claim for personal injury is denied unless the claim falls within a set of criteria that removes it from the program.

A recent rumour suggests that the LVI program may be significantly reformed (see BC Injury Law and ICBC Claims Blog by Erik Magraken). If this is the case, while the change may affect ICBC’s willingness to pay some compensation for small injury claims, it is unlikely to significantly change how ICBC will continue to handle claims involving significant injury. In other words, they will still maintain the position that a minor collision equals minor injury, which isn’t always the case. Fortunately, the Courts don’t follow ICBC policy, they follow the law.

While the Court will consider evidence of the damage to the vehicle and the force of the impact these are only factors that can be considered along with the rest of the evidence in determining causation of the injuries complained of. The force of the collision may not be a significant consideration and there is not always a direct correlation between the severity of the accident and the injuries sustained.

In Gordon v. Palmer, 1993 CanLII 1318 (BCSC), Mr. Justice Thackray made the following statement with respect to causation and low impact accidents:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

The Courts continue to reject the LVI defence where the defendant leads no contradictory evidence, medical or otherwise, to support the position that the accident could not cause the injuries complained of.

Despite what the Courts have said, LVI claims are difficult cases that come with inherent biases. While most LVI claims will involve relatively minor injuries, the consequences for some can be devastating. If your injuries from an LVI collision are anything but minor, you will need a lawyer to help you achieve fair compensation. Attention to detail throughout the claim is critical. Issues of causation, pre-existing conditions and allegations of malingering and fraud will all need to be dealt with head-on for a successful result.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

So ICBC has said: “you don’t need a lawyer” to help you with your personal injury claim. Initially it’s not a hard sell for ICBC, is it? Society has done a pretty good job of grooming you to not trust lawyers. In fact, if you Google “lawyer jokes” you will get over 3 million hits and plenty are aimed at personal injury lawyers, some of which I’ll admit are pretty funny. So, if you are like many people who haven’t been through the process before, you have faith in what the adjuster is saying and you provide ICBC with a detailed statement about the accident and sign all the papers they put in front of you, giving ICBC access to all your medical records and employment records without second thoughts.

However, as time goes by you may start to get frustrated. Perhaps they stop paying for your physiotherapy and massage treatments, even though you aren’t getting better. They switch adjusters on you and the new one is maybe not as pleasant or cooperative. They tell you there are some things in your medical records from a few years back they don’t like and now they want more information. They tell you they want you to see some doctor you’ve never heard of. They haven’t reimbursed you for some of the things they said they would. They make you an offer that seems like an insult but tells you that’s the best you are going to get. They threaten to close your file. But remember, ICBC says “you don’t need a lawyer.”

The word “need” is really an interesting choice. The reality is you don’t “need” a lawyer to pursue your personally injury claim any more than you “need” a hairdresser to cut your hair, a realtor to sell your house, a financial advisor to help you buy investments or a ski instructor to teach you how to ski. So do you “need” a lawyer? No, but in many cases, if not most, it is going to be in your best interest. Personal injury lawyers provide a service, just like the other service providers I have mentioned. For the same reasons you may hire a hairdresser to cut your hair, you hire a lawyer to help you with your claim. Sure you can cut your own hair (this might explain Donald Trump’s haircut), but unless you have some expertise in that area, you would probably prefer the end result with the help of a professional than if you do it yourself. The same is true for personal injury claims. Of course there are some exceptions and I will touch on those at the end.

In my opinion, a lawyer who specializes in personal injury claims provides you with an advantage that cannot be matched by pursuing a claim on your own. So, here are 12 reasons why I say you should hire a lawyer:

1. ICBC has a conflict of interest. If your accident involves another BC driver, ICBC acts as the insurer for the other driver as well as you. They cannot act in both of your best interests simultaneously;

2. a personal injury lawyer knows how to arrive at the real value of your claim, not what ICBC says it is and knows what evidence is required to best ensure that maximum value is recovered by you;

3. a personal injury lawyer knows how to deal with pre-existing injuries or illnesses and subsequent accidents that ICBC will often try to blame all your problems on and deny compensation as a result;

4. a personal injury lawyer will make efforts to preserve important evidence that you probably don’t even know you need and ICBC is not likely going to tell you. For example, if liability is in issue (in other words ICBC is debating who is at fault) or it is a hit and run situation, a personal injury lawyer can track down witnesses and collect the necessary evidence to ensure the best possible outcome;

5. a personal injury lawyer will not settle your claim prematurely (which means they will wait until all important information about the full extent of your injuries are known);

6. a personal injury lawyer can explain the difference between the law and ICBC Policy. ICBC often acts as though their policy (such as not paying settlements on low velocity impact claims) is the law when it is not;

7. a personal injury lawyer knows the limitation period for your claim and can ensure that the limitation period does not get missed. An insurance adjuster is not required to tell you the law and therefore cannot be sued for failing to do so. On the other hand a lawyer is specifically hired for that purpose and can be sued if they make a mistake;

8. if your injuries are going to have a permanent impact on your life (in other words you aren’t going to recover 100%), a personal injury lawyer can hire experts (often on an expedited basis), such as specialists, occupational therapists, and economists to help determine your diagnosis (if your family doctor hasn’t quite figured out your situation yet), make treatment recommendations, and properly figure out the value of your loss. Otherwise you will be stuck with whatever experts ICBC wants you to see and they aren’t likely to find in your favour;

9. a personal injury lawyer will ensure that you are applying for any additional insurance coverage that may affect your claim (Part 7 – Accident Benefits, EI, CPP, private insurance, etc.);

10. a personal injury lawyer will ensure that ICBC does not receive medical records or employment records that are not relevant to your claim. For more information on why giving a blanket authorization to insurance companies is a bad idea, see my previous article titled “What’s in Your Medical Records”;

11. a personal injury lawyer sees many client’s going through the same issues you are and therefore can often identify areas where you may need help (i.e. psychological counselling) and can make recommendations for how to get that help if wanted; and

12. a personal injury lawyer can provide you with peace of mind that you have obtained the best result for your situation.

Now, as I mentioned there are some exceptions to the rule. In my opinion if your claim meets all of the following criteria, you don’t “need” a lawyer, although it’s unlikely to hurt you if you would rather have the peace of mind of having one:

1. You have recovered from your accident in 6 months or less and you sustained no permanent impairments as a result of your injuries;

2. You sustained little or no wage loss as a result of the accident;

3. ICBC has accepted (in writing) that the other party is at fault for the accident;

4. Your accident is not classified as a low velocity impact claim (LVI);

5. You do not have any significant pre-existing or post-accident injuries or illnesses;

6. You have received a settlement offer from ICBC that you are content with; and

7. You are nowhere near the two year anniversary of your accident.

If your claim meets all of the foregoing criteria, there is not much risk in you settling your claim with ICBC directly. Will you get a “fair” settlement? It’s always hard to say, but injuries that heal in 6 months or less with no permanent impairment and little to no wage loss aren’t typically life altering such that you will suffer any long term consequences by settling with ICBC at possibly less than fair value. That being said, most personal injury lawyers don’t charge for an initial consult and therefore in my opinion, you have nothing to lose by meeting with a lawyer before deciding to settle your claim directly with ICBC.

Now, I often hear that personal injury lawyers are all about the money, they’re just looking out for their own best interests and they don’t really care about their clients. As with every profession there are some bad eggs that perpetuate the stereotypes. So yes, sadly I’m sure there are some lawyers that only care about the money just as there are some clients that fake or exaggerate their injuries for the sake of trying to get more money. The reality is that neither, in my experience are the norm and in fact I know many personal injury lawyers that will go above and beyond for their clients and in many cases losing money. If you want to know if the lawyer you are hiring actually cares about his or her clients, ask for references and meet with a few lawyers and judge for yourself. I expect you may be pleasantly surprised.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

I have represented several clients involved in hit and run cases and in each case I have been routinely disappointed at what I perceive to be an unfair approach taken by ICBC. As it turns out, I’m not the only one that thinks their approach is unfair. In a 2012 decision called Springer v. Kee, Mr. Justice Armstrong for the BC Supreme Court acknowledged that ICBC is not obliged to warn the injured party of their obligations under the legislation but also said that “ICBC was, in my view remiss in their duty to inform the injured party about the steps necessary to perfect his claim” and that “It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.”

If you are involved in an accident, you are required to remain at the scene of an accident and to exchange information with the other drivers involved. This means that all drivers need to produce in writing, their name, address, driver’s license number, license plate number and if they are not the registered owner of the vehicle, the name and address of the registered owner. However, what happens if the other vehicle or driver involved in the accident takes off?

Section 24 of the Insurance (Vehicle) Act provides a remedy to a plaintiff for bodily injury in a hit and run situation provided certain criteria are met. Those criteria are that “all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and the identity of those persons or that person, as the case may be, is not ascertainable.” Numerous cases have looked at s.24 and in particular what constitutes “reasonable efforts.” No two cases are alike and it has been repeatedly stated that what constitutes “reasonable efforts” will depend on the circumstances of each case. The Court must assess the plaintiff's reasonable efforts to identify the driver and owner both immediately after the collision, and in the days and weeks following the collision.

Why is this required? Well, one purpose of the legislation is to discourage those who have suffered injury as a result of their own negligence from making a false claim and blaming the accident on a phantom driver. Another is to make sure that the person who caused the accident pays the right insurance premiums.

So, to ensure that reasonable efforts have been made, you should take the following steps as soon as possible to try to identify the other driver in a hit and run accident:

• if you are in an accident, as soon as possible, try to get the other driver’s license plate number
• immediately contact the police to report the accident
• seek the names and contact information of witnesses at the scene of the accident
• speak to surrounding neighbours or businesses in the area to see if they have any information
• report the accident to ICBC
• put up signs or posters in the area seeking witnesses to the accident
• advertise in the local newspaper seeking witnesses
• any other action that you think might assist in identifying the other driver and vehicle involved in the accident
• contact a personal injury lawyer to find out what else you may need to do

Since we now live in the age of the smart phone, if the other driver is unwilling to provide information or you notice the other driver is about to take off, you should try to take a photo of the vehicle and license plate. Also, if possible, you should try to take a photo of the driver (ICBC has facial recognition software). If you don’t have a smart phone, at a minimum you should try write down the license plate number and a description of the vehicle and driver.

If you take all of the above steps you should be in a good position to make a claim for compensation for your injuries in a hit and run accident. It is important to note that even if you don’t think you have been hurt, it is CRITICAL to get the information about the other driver and vehicle involved. Many injuries aren’t felt immediately after the accident and if you don’t get this information you will not be able to make a claim.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

All signs this month indicated I needed to write about deer. First, there’s a funny story out of North Dakota where a woman called into a radio station and wanted to know why the government was posting signs encouraging deer to cross the interstate. Seriously? I’m really hoping this was a joke, but if you haven’t seen this, you have to check out the article in the Huffington Post (Donna, Radio Caller, Wants Deer Crossing Signs Moved So Deer Won’t Cross Highways).

Second, I keep encountering near-misses with deer on the road up by my place and third, and perhaps most obvious, 'tis the season to sing about deer. Of course the most notable Christmas carol is “Rudolph the Red Nosed Reindeer” but for this article, a more appropriately titled carol is “Grandma Got Run Over By a Reindeer”.

Photo: Thinkstock.com

If you have been in an accident with wildlife, you know it’s not a pleasant experience. I can remember being a child in Saskatchewan driving back from the lake late at night and my mom crashing into a deer that was in the middle of the road. I can still hear the loud thud and feel the terror of this large animal crashing into our car. In my case, we were lucky, no one was injured (beyond the deer), my mom kept her composure and the vehicle on the road despite the fact that I’m sure it scared her to death.

Of course wildlife on the roads can cause more than vehicle damage and a minor childhood rattling. According to statistics collected by ICBC, on average, 4 people are killed and 384 people are injured every year as a result of collisions involving wildlife and according to Wildlife Collision Prevention Program website there are between 4 and 8 large animal vehicle collisions every hour in Canada.

So what happens if you are injured in a car accident that was caused by wildlife? Unfortunately for us, deer (and other wildlife) don’t carry insurance so if the animal is the sole legal cause of the accident your only recourse will likely be the limited accident benefits available through ICBC. In other words, you will have no claim for pain and suffering or other damages that are only available where a human being or other legal entity is responsible. But, if in addition to the wildlife, the driver or another entity is partly to blame for the accident or the extent of your injuries, you may be able to make a claim.

In the case of Freidooni v. Freidooni 2010 BCSC 553, the Court held the driver liable for injuries to his passenger (his wife) when she was injured as a result of a collision with a deer. In that case, it was daylight, the defendant had his vehicle on cruise control in excess of the speed limit and the road conditions were perfect. In addition, the accident occurred in an area where there was an expectation of wildlife. As a result, the Court held that the defendant failed to keep a proper lookout thereby making him liable to his wife for the injuries she suffered. The driver in Bassi v. Bassi 2010 BCSC 1869 was also held liable for his passengers’ injuries when he swerved to avoid a deer resulting in the vehicle leaving the road, rolling and landing in a ditch. In that case, the driver had not slept in 24 hours, was aware there was wildlife in the area and it was light out at the time.

In the decision of Power v. White 2012 BCCA 197, the BC Court of Appeal upheld the trial judge’s decision holding the defendant liable for rear-ending the Plaintiff’s vehicle when it made a sudden lane change from the fast lane to the slow lane, and abrupt braking in front of the defendant’s vehicle as a result of the sudden appearance of a deer on the highway. In essence, the Court found that the defendant saw the deer “land” in the fast lane before the plaintiff changed lanes and he failed to apply his brakes in time to avoid the collision.

In the case of Pitt Enterprises Ltd. v. Farkes 2005 BCCA 511, the BC Court of Appeal upheld the trial judge’s finding that the defendant could not have seen the moose in time to avoid the accident. As a result, the plaintiff could not recover damages for his injuries. A similar conclusion was reached in Racy v. Leask 2011 BCSC 846.

In summary, for cases involving wildlife, there are several possible outcomes. It is important to understand that each case is very fact specific and therefore no conclusions should be drawn without a careful review of the facts. While you can’t make a claim against the deer (I can see the Notice of Civil Claim now – S. Claus v. Rudolph and Others), you may have a claim against the driver of a vehicle involved or in unique cases, possibly the branch of government responsible for the roadway where the accident occurred or even the manufacturer or repair company for your vehicle if there was a defect in how the vehicle reacted in the situation (i.e. brake failure, air bag failure, etc.). As a result, if you are injured as a result of a collision with wildlife it is important to get legal advice about your claim.

For more information on prevention of wildlife collisions see: www.wildlifecollisions.ca.

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.