Are you vulnerable?

How can it be that some collision victims recover completely while others are left with life-long pain?

For one, each of us is built differently.

For example, those with long, slender necks are more vulnerable than those with short, beefy ones.

Remember Graham, the “ideal crash-proof human” conjured up by a trauma surgeon, a crash expert and an artist? 

Follow this link to see what Graham looks like: Here’s what humans might look like if we had evolved to survive car crashes

And the forces exerted on you in a crash depends on a dizzying list of factors, including the speeds and directions of the vehicles, safety features (which can actually increase damage to occupants) and what seat you are occupying.

And damage to your tissues can be different depending on whether you’re braced for, and your particular head and body positioning at the time of, impact.

But what if you strip away all of those variables. Pretend the exact same forces are exerted on two people with the exact same physical build, in exactly the same way.

Will their injuries and outcomes be exactly the same?

Consider if one is a perfectly healthy, 19 year-old gymnast. The other is me, a de-conditioned 48-year-old desk jockey with an elevated BMI.

Neither of us had any pain, stiffness or other symptoms before the crash.

The 19 year-old gets sore after the crash. But with a handful of therapy sessions and a month or two of healing time, he’s completely recovered. He feels he’s won the lottery with a $2,500 settlement from ICBC.

I’m left with chronic, unrelenting neck pain and regular headaches.

How could that be?

An X-ray reveals arthritic changes in my neck. Of course, it does. I’m 48 years-old!

Those arthritic changes, and my de--conditioning, make the difference.

There is more straining and micro-tearing of tissues to an inflexible body, unable to touch my toes, than to someone who can scratch their ear with their big toe.

A complete recovery might still have been possible, though, if not for the arthritic changes.

What would a doctor say if asked what caused my chronic symptoms?

There are three possible answers.

  • One obvious one is the pre-existing arthritic changes, without which I would have enjoyed a complete recovery.
  • Another might be the crash. Had it not been for the crash, I would have continued to live pain-and-headache free.
  • And finally there might be an attempt to attribute the cause to each contributing factor, perhaps 40 per cent to the crash, 40 per cent to the arthritic changes and 20 per cent to my de-conditioning.

How would each of those answers impact on my ICBC claim?

This is one of the least understood aspects of personal injury law, even though the law could not be clearer.

A pre-existing vulnerability is not a “get out of jail free card” for ICBC.

A negligent driver, through their liability insurer ICBC, is responsible to compensate their victim for all injuries and losses that would not have occurred had the collision not occurred.

It is no answer that the injuries and losses would have been less had the victim not been so vulnerable.

The law was set out, recently, at paragraph 61 of Allen v. Parkeh, 2018 BCSC 126

“The test for causation in Canada is the “but-for” test…To assess whether the Defendant caused an injury, the trial judge asks if, without the Defendant’s tortious act, the injury would have resulted. If the answer is “yes”, the Defendant is not liable for the injury or the losses flowing from it…If the answer is “no”, the Defendant is liable to the Plaintiff for the whole of the losses flowing from the injury…”

And further, “The losses “flowing” from an injury are those losses which the Plaintiff proves, on a balance of probabilities, would not have occurred “but-for” the Defendant’s act…”

So don’t let an ICBC tell you, or anyone you care about, that your injuries “should have resolved by now” had it not been for your pre -existing vulnerabilities, and that they are not responsible for the ongoing aftermath of their insured’s negligence.

Do you drive a bullet?

The excuse: “He came out of nowhere,” gets me all hot and bothered.

Not in that good way.

Those words were included in a recent news article about a cyclist collision with a vehicle. I reacted with a Facebook post noting:

“Bullets might come out of nowhere…not bicycles.”

Leading to this responding comment:

“Bottom line is that a bicyclist must assume they cannot be seen nor heard by a motorist…and that the bicyclist will never win in a collision with a 3000 lb bullet. I drive for a living at night and at least once a week I have a near miss with someone who assumes they can be seen. Stupid is what stupid does.”

It’s a common motorist attitude.

There’s truth in it, if a collision were a wrestling, boxing or MMA fight.

Cyclists and pedestrians are vulnerable. When involved in collisions, they are hurt badly while the motorist is unscathed.

What did our mamas teach us about how to treat those who are vulnerable?  What are our general societal values about the vulnerable among us?

When they are hurt, do we highlight their vulnerability and tell them they should do more to protect themselves?

Or do we focus our attention on the person whose lack of care or lack of awareness of the vulnerability resulted in the hurt or damage?

Why should it be different on our roadways where consequences to those most vulnerable can be so severe?

I think most of us “get it” in school zones.

Nobody, I hope, would ever say to a child who steps out onto the street from between two parked cars:

“stupid is as stupid does.”

Motorists are expected, in school zones, to slow down to what feels like a crawl and pay a super high level of vigilant attention so that children will be safe even if one does step out from between parked cars.

Yes, children must learn to use crosswalks and look carefully both ways before crossing the street. We all must. And cyclists should obey the rules of the road and show a high level of care for their own safety.

But who has the higher moral duty?  In my view, it’s the pilots of the bullets weighing thousands of pounds.

A motorist who says a pedestrian or cyclist “came out of nowhere” is not paying the minimal level of care expected of all motorists all the time, let alone a level of attention required to protect the most vulnerable of road users.

Rather than blaming cyclists and pedestrians for failing to take more care for their own safety, we need to be considering what more we can do to take more care for their safety.

And it’s not hard. It simply requires paying continuous, focused attention to the task at hand.

And adjusting our driving to take into account the possibility that a vulnerable pedestrian or cyclist, child or adult, might themselves be inattentive or reckless so that we can avoid hurting them.

Focus on your recovery

When I ask this type of question: “Why did you have only four sessions with a kinesiologist?” I often get: “That’s all ICBC approved.”

I get so frustrated, I probably get red in the face and start twitching.

I wonder what guidelines ICBC adjusters go by when deciding whether to “approve” care, and how much to approve.

It’s not their fault, of course. They are just doing their jobs, cogs in the wheels of a massive insurance company.

And without medical training, how can they be expected to know that it takes a whole lot more than four sessions for a kinesiologist to assess, establish and supervise a stretching and strengthening program to maximize recovery?

They are reasonably receptive to extending approvals, if presented with a doctor’s note. Which leads to a song and dance routine — the adjuster “approving” some level of care and then requiring an endless series of doctor notes for extensions.

What a dreamland it would be if an injured victim could simply focus on their recovery.

Doctors could focus on treating their patients, scheduling follow up assessments at a frequency they determine to be optimum rather than wasting their time on arbitrary, note-driven consultations.

Critically important care would not be interrupted by delays arising from ICBC arbitrarily cutting off funding, delays getting in to see a family doctor and delays getting in touch with the adjuster.

I have important medical and legal advice to innocent crash victims who are facing this song and dance:

 If at all possible, get off the dance floor.

I say “if at all possible” because many cannot afford care without ICBC’s up-front financial contributions, even with “beg, borrow and steal” efforts.

But most can, if they think outside the box to find the dollars and cents. And that’s what it takes because nobody has extra cash sitting in their bank accounts. And many are facing lost income at the same time as the added care expenses.

Consider, for example, going to a brother or sister, parent or grandparent for help.

It’s not a handout. It’s temporary.

If you were the innocent victim of another driver’s negligence, ICBC will have to reimburse every dollar of reasonably incurred expense as part of your claim even if you leave them alone on the dance floor and don’t provide them with a single doctor’s note.

You can focus on your recovery, avoid the stress of continual dealings with an ICBC adjuster, and ensure that your care is not interrupted. This will maximize your recovery.

And you will avoid all sorts of arguments ICBC likes to make down the road that you didn’t do enough to get better.

Yes, ugly as it sounds, they can make those arguments even if they refused to “approve” that care at the front end.

A very recent court decision released Aug. 1, 2018, Fedosenko v. Zahirfar, 2018 BCSC 1297, affirmed the longstanding principle that an innocent victim is entitled to reimbursement of reasonably incurred expense.

ICBC’s lawyer made all sorts of arguments to avoid having to reimburse expenses.

Wanting to avoid reimbursing the expense of chiropractic care, they argued: “No physician has ever recommended chiropractic treatment to the Plaintiff as a form of treatment."

The judge addressed that argument with:

“A plaintiff is entitled to seek treatment from a chiropractor whether a physician has referred him or not. The plaintiff had seen a chiropractor before the accidents. He obviously felt chiropractic treatment had been beneficial before and would likely assist him again.”

They also argued against having to reimburse for physiotherapy and massage therapy on the basis that those therapies had not been shown to improve the Plaintiff’s condition.

That argument fell flat as well, the judge saying:

“There is no requirement that a plaintiff must prove physiotherapy or massage therapy improved their condition. These treatments were reasonable expenses. Sometimes physiotherapy is not successful in improving the plaintiff’s condition. That does not make it an unreasonable expenditure.”

How do you ensure that the expenses you incur will be seen to be reasonable? 

Simply seek and follow the care recommendations of your treatment team!


Lying to ICBC will cost you

Does your ICBC policy give you an iron-clad guarantee of insurance protection? 


There are ways you can forfeit that protection, leaving you to face the same crippling financial consequences as if your vehicle had not been insured at all.

I am going to review three ways that ICBC insurance protection can be forfeited.

One is at the time you insure your vehicle.

There is a section of the Insurance (Vehicle) Act, section 75(a)(ii), that says your insurance rights are forfeited if you knowingly misrepresent or fail to disclose information when you apply for insurance.

A “little white lie” to reduce insurance premiums, such as who the principal operator will be, will result in a whole lot more than a slap on the wrist if you cause a crash. You will likely be left with zero insurance coverage.

The reduced premiums you pay might as well have been flushed down the toilet.

This scenario played out in a lawsuit, Lau v. ICBC, 2012 BCSC 1226. It was perhaps an all too common scenario where a father had purchased a new vehicle for his son, but falsely named himself as the principal operator.

The son was solely at fault in a crash that not only caused the total loss of the vehicle, but also resulted in unresolved claims of injured victims of the crash.

A lawsuit was brought against ICBC to force them to provide insurance coverage. Because of the false declaration of principle operator, the case was dismissed, leaving father and son with zero insurance protection.

Not only were they left holding the bag on the over $40,000 loss of the vehicle, but they faced personal responsibility for what might have been dramatic losses of the crash victims.

Another way to forfeit your insurance coverage is to drive while impaired.

Doing so exposes you to stiff administrative penalties and potential criminal prosecution. But those consequences might pale in comparison to forfeiting liability insurance coverage if you cause a crash.

Section 55(8)(a) of the Insurance (Vehicle) Regulation provides that ICBC is not required to provide insurance coverage if you are intoxicated to the point that you are incapable of proper control of the vehicle.

This scenario played out in the court decision of Hamman v. ICBC, 2017 BCSC 831.

Mr. Hamman had caused a rear-ender crash. An injured occupant in the vehicle he rear-ended was compensated by ICBC in a settlement of $212,000.

Mr. Hamman brought a lawsuit against ICBC for insurance coverage. ICBC counterclaimed for reimbursement of the $212,000 paid to the injured victim, claiming that Mr. Hamman’s insurance coverage was forfeited because he had been impaired by alcohol.

With overwhelming evidence of Mr. Hamman’s intoxication, including breathalyzer readings in the range of 0.17 per cent, ICBC was successful resulting in a judgment against Mr. Hamman of $212,000 plus interest, plus costs.

A third way to forfeit your insurance coverage is by being dishonest with ICBC after a crash has occurred.

Section 75(c) of the Insurance (Vehicle) Act provides that your insurance rights are forfeited if you make a willfully false statement with respect to the claim.

This can lead to an ironic result if you lie, mistakenly believing that your driving behaviour would have disentitled you to insurance coverage. That lie, in itself, can result in a forfeiture of your coverage even though your driving behaviour would not have.

This was the result in Narayan v. ICBC, 2015 BCSC 994.

At the scene of the collision, Mr. Narayan admitted to the police having consumed some alcohol and was issued a 24-hour prohibition. For whatever reason, he was not required to undergo a breathalyzer, nor to undergo coordination testing.

Alcohol consumption does not, in itself, forfeit your right to insurance coverage. There must be evidence of intoxication to the point that you were incapable of proper control of the vehicle. There was no evidence of that in this case.

But Mr. Narayan lied to ICBC. He was specifically asked if he had consumed any alcohol in the 24 hours before the collision. Rather than telling the truth like he had to the police at the scene, he denied it to ICBC.

Had he been honest with ICBC, his insurance would have been valid. Instead, ICBC was successful in having Mr. Narayan’s claims dismissed, and achieved a counterclaim against him for reimbursement of the amount paid to settle the victim’s claim.

Insurance coverage is complex stuff. It is an area of the law that I have only passing familiarity with because I act only for injured victims, never for those who cause crashes.

I very strongly recommend that you have a consultation with a lawyer (not me) if any of these issues come up for you.

But, generally speaking, being honest with your insurance company is a really, really good rule of thumb!

More Achieving Justice articles

About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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