Our Blog

CBC reported today on a video of a "road rage" incident in North Vancouver that was posted on YouTube.  Their article contained some tips on how to deal with a road rage incident and ways to avoid getting in a situation in the first place. One of those tips was to "Stay in your Vehicle."  Being inside the vehicle has the obvious advantage of having the vehicle windows and structure offer you protection from assault and injury, but there are also a less obvious advantage to this from a personal injury law perspective.

First off, injuries arising from a road rage assault that occurs outside of the vehicles will likely not be covered by insurance.  Where the dominant cause of an injury to a person is the use of any weapon or object, other than a vehicle used as a weapon, section 90 of the Insurance (Vehicle) Act says that the insurance company (usually ICBC) does not have to pay any insurance money to the person suffering the bodily injury.  That leaves you to sue the person that assaulted you, so if there is no insurance coverage and it turns out the person has no assets, you may have what is called a "dry judgment", which is an analogy to putting a bucket down a well to get water, but the well is "dry".  There is at least one reported case where an important issue was whether a person was struck by a vehicle or by the fist of someone in the vehicle, which leads one to believe that a fist would be construed to be a weapon or an object for the purposes of s.90.

Similarily, Part 7 accident benefits will probably not be available to a person injured in a road rage situation that occurs outside the vehicle.  In order to be eligible for Part 7 benefits, the injury must be caused by an accident that arises out of the "use or operation of a vehicle" according to section 79(1) of the Insurance (Vehicle) Regulations.  Similar no-fault benefits were extended to a person that was the victim of a car-jacking attempt, on the basis that it was the "use and operation" of the person's own vehicle that put the person in harm's way.

Every case will turn on its specific facts, and all of the tips given in the CBC article are valid.  One of the most important ones is stay in your vehicle and lock the doors.  If the assaulting person goes so far as to use their vehicle as a weapon, you will be in a better position to prevent or lessen injury than if you are outside.  You may also be in a better position to recover compensation and benefits for any resulting injuries.

The BC Supreme Court recently held that interest charges on disbursements (expenses a law firm has in advancing an ICBC Claim) is recoverable against the Defendant, or ICBC.  If interest is necessary or properly incurred in the docut of the proceeding, a reasonable amount is recoverable whether the interest charges are paid to a financier, service provider, or lawyer in the personal injury action.  The Court ordered that the Defendant and ICBC had to pay interest on Magnetic Resonance Imaging (MRI) scans and expert reports.

Chandi v. Atwell, 2013 BCSC 830
http://www.courts.gov.bc.ca/jdb-txt/SC/13/08/2013BCSC0830cor1.htm

With the floods happening in Calgary and Southern Alberta, our hearts go out to all those affected and displaced.  Best wishes to all those affected and the City of Calgary employees that are working hard to keep the water filtration systems up and running.

As lawyers, we found the report from the Calgary Herald that the predatory cats at the Calgary Zoo may be moved to the holding cells at the Calgary Court Center quite amusing.

Governments, crown corporations and large private corporations are working by themselves, for themselves, and in concert (and self interest) to process data in ways that meet their needs; all at the expense of our privacy.  They may pay lip service to privacy but once the toothpaste is out of the tube there is no going back.

In a report titled “Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society,” the American Civil Liberties Union gave an example of privacy in this traditional sense: “A woman who leaves her house, drives to a store, meets a friend for coffee, visits a museum, and then returns home may be in public all day, but her life is still private in that she is the only one who has an overall view of how she spent her day. In America, she does not expect that her activities are being watched or tracked in any systematic way -- she expects to be left alone.”



When interests are not aligned and your adversary has access to your private information (which they do and are working hard to process efficiently) you are putting yourself in harms way and at risk to abuse of authority.

Scenario:  You suffer serious injuries in a car accident in Vancouver due to someone else's negligence.  Your insurance coverage doesn't cover the things that your doctors tell you you need. You walk into a lawyer's office, and they tell you that because you selected no-fault insurance, there isn't anything you can do.

Fortunately, this scenario doesn't play out very often in B.C.  We have a full tort system that allows people to be put back to the position they were in before the collision, as best as money can accomplish that.  But we got very close to this scenario in 1997.  If you change the above scenario just slightly, in that you change the cities from Vancouver to Saskatoon, it has happened a whole lot since 2003.

In Saskatchewan, it has been just over a decade since you could choose to have either:

• no-fault insurance (which is similar to the system we have in place in B.C. for workplace incidents, where you can receive benefits for lost wages, and care costs, but you cannot sue the person that caused the injury, and you cannot recover anything for your pain and suffering); or
• tort insurance (which is like the system we have in place in B.C., where you can sue the other driver for lost wages, care costs, pain and suffering, etc.)

Now, after 10 years, and on the back of a man rendered a quadriplegic in a motor vehicle accident who signed up for no-fault insurance, was injured, and found that the no-fault benefits provided were not enough, the Courts have finally made it clear that the no-fault insurance scheme does not work in all cases. They have given the injured man the ability to sue to recover the shortfall between the benefits and his actual losses.

Due to a courageous man by the name of John Acton and his lawyers, the Supreme Court of Canada has refused to hear the appeal from a decision of the Saskatchewan Court of Appeal.  That decision allows Mr. Acton to sue for benefits that were not provided to him, so hopefully the above scenario will not play out as often as it has in the past.  Even more importantly, with the hindsight gained from the Saskatchewan experience, it hopefully won't play out at all in British Columbia.

Why does this matter in British Columbia?  We have a tort system?    When the time comes for you to voice your choice should no-fault insurance raise it's head again in B.C., I think it behooves us all to learn from the mistakes of the past.