Hit and Run cases are complicated

There is no way around it; Hit and Run cases are complicated.  

The area of law that gives rise to a claim for personal injury and losses, such as out of pocket expenses and wage loss, is called Tort law.  Under Tort law which has developed through judges in what is called "the common law",  the injured person can sue the person that injured him or her (called in law, the Tortfeasor").  

What happens if the victim is unable to identify the Tortfeasor because the Tortfeasor fled the scene.  Under the common law, the victim has no remedies.  One cannot sue a Tortfeasor unless one knows who to sue.

This development in the law is very unsatisfactory.  It creates an incentive to flee the scene and leaves legitimate victims to suffer with no remedy.

To fix this problem, the government passed a law that modifies the common law.  The government passed law allows a resident of British Columbia to name ICBC in place of the unknown Tortfeasor.  The specific law is section 24 of theInsurance (Vehicle) Act and it is complicated. It is complicated even further because judges have interpreted the section in certain ways that would not make sense to someone not trained in this area of law (or in ways that do not make sense to someone who is trained in this area of law, but at least he or she knows the law even if it does not make sense!) 

The government and judges interpreting the legislation have made very strict rules on what a victim has to do in order to comply with the legislation.  I was once in front of a Registrar of the Supreme Court of British Columbia who was amazed at what was required and candidly admitted that he would not even know what was required of a victim to perfect (the legal word for meeting all of the requirements of the legislation) a claim under the hit and run provisions.

The law was complicated by the fact that ICBC was NEVER REQUIRED TO ADVISE A PERSON OF WHAT WAS REQUIRED.  This development in the law was really quite stunning to me.  Fortunately, a recent case has expanded the law in this area in a good way.  The case is Springer v. Kee.  

Keri Grenier, a lawyer in Kelowna, BC at the law firm Pushor Mitchell, has published an excellent blog post that I recommend to all my readers.  For your convenience here is a link:

Keri Grenier blog post

Thank you to Keri for putting word out about this issue and thank goodness some sanity has been inserted into the law on this issue.

Blogger is not supporting this blog anymore, so I have created another blog where my current posts are located:

www.personal-injury-lawyer-vancouver.blogspot.com

Important new case for people with ICBC claims

Today the BC Court of Appeal released a case that will have a profound impact for many people recovering from a car accident in BC.  


Under the law in BC, a injured person has access to two pools of money.  One through the Tort claim which results in compensation at the end of the claim.  The other pool of money is through "no fault" or "Part 7" benefits, which are paid up front.


Under the "no fault" benefits, there are some mandatory benefits which ICBC MUST pay, subject to certain conditions.  There are also some discretionary benefits which ICBC may pay.


ICBC has long held (when it suits its interest) that benefits for massage therapy is discretionary and ICBC's policy is to pay for up to twelve visits in the first 8 weeks.


Today in Raguin v. ICBC, Madam Justice Rowles sent ICBC a very different message.  Massage therapy benefits are actually a MANDATORY benefit.  That means, if you meet the requirements of the regulation, ICBC MUST pay for your massage therapy up front.


The decision today should make paying for treatment much easier for many people.  The problem that many people with ICBC claims will likely run into is forcing ICBC to pay for these treatments even if the Court of Appeal has told ICBC that they are mandatory.


As a law firm, McComb Witten is putting together a strategy to enforce this benefit for our clients.  We do not expect ICBC to pay willingly.  Our job as lawyers, however, is to get the money for our clients that they have a right to, but ICBC does not want to pay.  


In fact, that last statement is exactly the reason why people with ICBC claims hire lawyers and the reason I enjoy being a personal injury lawyer in Vancouver, BC.

Cross-examination of a neurosurgeon - Part 3

You will recall that I left this story with the ducks lined up for the second goal.  The doctor wrote in his report that the accident was not the cause of my client's symptoms.  For those of you new to legal principles in ICBC claims, a plaintiff (the injured person) must prove that the accident was a legal cause of the injury - the principle is called causation.


The second goal was to get the doctor to reverse his opinion causation. 


I started with a couple of accepted medical facts....


For the rest of this post, please visit my new blog at:


www.personal-injury-lawyer-vancouver.blogspot.com

Family Lawyer and Estate Planning

As a Vancouver personal injury lawyer, I am regularly asked by clients and friends for a referral to a good family lawyer or help with wills and estates.  Because I practice exclusively in BC car accidents, I know lots of Vancouver personal injury lawyers and ICBC claims lawyers.  I do not, however, run across many family law or estate planning lawyers in my practice.  I am happy to let my readers know of a couple of fine family law and estate lawyers to whom I can confidently refer clients.


To see the rest of this post visit my new blog at:
www.personal-injury-lawyer-vancouver.blogspot.com

Another trial success for the McComb Witten team

 I would like to thank the ladies and gentlemen of the jury who sat through two weeks of evidence and gave up their Saturday to deliberate.  They returned a fair and reasonable verdict that clearly weighed the totality of the evidence.  


This trial was a coming out party for Meghan Neathway and the McComb Witten litigation team.  Meghan did an amazing job as co-counsel on this trial.  She has a nose for detail and a heart of  a lion.  Meghan was a key contributor in the organization and selection of our evidence, refinement of our theory of our case, and preparation of our witnesses.  She did an amazing job with the witnesses she took at trial.  What I like most about Meghan's approach is her easy ability to be genuine even on a stage such as a jury trial.  Congratulations to you Meghan - you are a fine trial lawyer.


Anybody looking for a great Vancouver personal injury lawyer would be in great hands with Meghan.  Check out her bio:
Meghan Neathway's bio


Finally, our client is a class act.  A brilliant gentlemen with integrity and courage.  He suffered life threatening injuries and has the strength of character to make the most of his situation.  Two broken legs, brain injury, skull fracture, blowout fracture of his eye socket, fracture through a joint at the base of his skull, two broken bones in his back, and a shattered tailbone.  He made it out of his wheelchair 21/2 months later and was back at work 2 weeks after that!!!  ICBC told him that "he was the author of his own misfortune".  He had the courage to take his case to a jury and they found the driver that hit him 75% responsible for the accident.  Again, not exactly what we were looking for, but was a fair and  reasonable assessment of the evidence.  All in all the verdict was entered for $640,000 less 25% for contributory negligence.


The jury gave our client the resources to get the medical care he needs, compensated him for his past wage loss and gave compensation for the hit to his career and gave him a fair and reasonable amount for his pain and suffering.


Thank you to our client, our judge, Mr. Justice Abrioux, my colleague Meghan Neathway, and the jury.  It was great to see our justice system work.

Cross-examination of a neurosurgeon - Part 2

Damn you blogger for not supporting this template...come visit my new blog and read this post at:

http://www.personal-injury-lawyer-vancouver.blogspot.com/

Cross-examination of a Neurosurgeon - Part 1

Blogger is no longer supporting this template.  Please see this post at:

www.personal-injury-lawyer-vancouver.blogspot.com

Jaywalker hit, driver blamed

Unfortunately, Blogger is no longer supporting this template.  Please see this article at:

http://www.personal-injury-lawyer-vancouver.blogspot.com/

Another McComb Witten Trail Win

ICBC often tells people that there is not enough damage to their vehicle, so ICBC is not going to consider compensation for the person (ICBC calls this a LVI or low velocity impact claim). This position can be a real hardship for some people who have actually been injured in an accident.

I recently did a trial for such a case, Eom v. Chand, reasons unpublished.

On July 6, 2011 Justice Leask provided oral reasons for the trial. Until days before the trial, ICBC refused to make any offer to Ms. Eom. When the judgment came in, it was for 12 times what ICBC finally did offer. At trial, ICBC said that Ms. Eom recovered within two months of the accident. The problem with that theory is that the evidence of physiotherapist, Angelica Reeve (who Justice Leask called the most impressive physiotherapist he has had testify before him). She was highly trained with a Master's degree from one of the top universities in the world and Angelica testified that she could feel that the joints in Ms. Eom's neck were not moving properly when she treated Ms. Eom. ICBC's theory also did not take into account the fact that Ms. Eom's doctor told the judge that she thought Ms. Eom was only 50-60% recovered at the time of the trial.

ICBC attacked the credibility of my client, her doctor, the physiotherapist. None of the attacks had any merit, but these are the tactics that people often face when in trial. ICBC never came up with any theory that factored in the fact that Ms. Eom, her doctor, and her physiotherapist, may actually have been telling the truth.

In the end, ICBC told the judge that her claim was worth as little as $2000 dollars. Ms. Eom had more in "out of pocket expenses" than that. Justice Leask awarded Ms. Eom $132,042.20 for this so called "LVI denial".

I don't think that the people at ICBC are bad, in fact I have quite a lot of respect for many of the people I deal with at ICBC. Sometimes, however, the bureaucracy of the ICBC machine can squash you unless you have the will and tools (including a good lawyer) to fight for your rights.

Congratulations to Ms. Eom who had that courage to withstand these attacks and candidly tell the judge her story.

By the way, if you are looking for a good physiotherapist in North Vancouver, I can recommend Angelica Reeve at 19th Street Physiotherapy 604-988-5221.

Check out my new updated blog at:

http://personal-injury-lawyer-vancouver.blogspot.com/

Find answers to your ICBC claims at my new blog

Unfortunately, Blogger is no longer supporting changes to this template and I can do little more than add text.  I'll save you from a technical explanation, but I have had to create a new blog.  Find my new blog at:

http://personal-injury-lawyer-vancouver.blogspot.com/

Hataw Pinoy

As a proud sponsor of the Filipino Summer Festival, McComb Witten had a booth where we provided information on ICBC claims and gave away a tonne of great stuff...including a draw for a one once gold coin!!

The festival can only be described as a smashing success.  The main stage showcased a steady stream of amazing artists from child rock star performers to stunning dance troops.  The impact of Singing Idol was obvious as the breadth of talent was incredible..

The food provided by restaurant vendors such as Goldilocks, Kumare and others was nothing short of spectaclar.  We intend to come back at Christmas...even if it is only to get some more of the fantastic Filipino BBQ. 

To all of the people who came by our booth and chatted with us, I just want to say thank you and Hataw Pinoy.

http://www.philippinesummerfestival.com/our-sponsors.html

Will going on a vacation affect my ICBC claim?

As a Vancouver personal injury lawyer dealing with ICBC claims, I get asked this question all the time:

"I had a vaction booked before I was involved in a car accident.  Will it affect my claim if I go?"

Answer: Yes.

The better question is:

Should I go anyway?

To answer this question, you will need to get specific advice from a lawyer on your case...(insert plug here) like the fine lawyers here at McComb Witten who deal only with ICBC claims :-).

I can, however, provide some useful legal information that might help you understand how ICBC may use your vacation to obtain evidence.
  
For years ICBC has asked for photos (with mixed results) from vacations for people injured in BC car accidents and having an ongoing ICBC claim.  A recent decision requires the injured person to produce all photos plus digital "metadata" from their vacations 1 and 7 months post accident.  Here is a link to the case:

http://www.courts.gov.bc.ca/jdb-txt/SC/11/08/2011BCSC0885.htm

In a file I had years ago, a client was required to produce photos from a trip to Jamaica.  She produced a number of photos including one of her smoking a self rolled "cigarette".  Now, I don't judge my clients, but a jury might.  So, the question from a lawyer's perspective becomes "What is a jury going to do with this evidence?"

HST in BC

During the last federal election, I was asked by the Vancouver Sun to participate in an online blog "Family Matters" dealing with political issues from a family perspective.  Following that, the Vancouver Sun asked us to participate in a story theywere preparing on the HST.  We were asked to keep our receipts for a few weeks to see how the HST was impacting our spending.

A few weeks ago the story ran in the Vancouver Sun.

http://www.vancouversun.com/news/Family+feels+fatigue+sees+some+merit/4998628/story.html

 As I was looking at my ballot yesterday, I was still not sure how I was going to vote.  I see the merit to switching to one tax.  I think the government treated the people of BC with disdain in the way that they implemented it.  The government is still engaged in serious fear mongering and distribution of (at best) slanted information.  The HST was a clear cash grab and hidden transfer of tax burder from business to individuals.  The Fight HST side has shown itself to be little more than an aging former politician who is having a glorous run in the spotlight.

The most persuasive information on the HST (and I think factually honest) is a u-tube video by UBC law student Chris Thompson.  Congrats to Chris (who I don't know and never met) for producing something that appears to be information without a political swing.  If you have not seen the video, check it out.

http://www.youtube.com/watch?v=nZXu3LXNwEg

For me, perhaps the deciding factor was Bill Vander Zalm's thoughtless and hollow response to Chris's compelling video.   Vander Zalm essentially resorted to childish name calling.  The answer seemed to me to be illogical and vain.  It did more to discredit Vander Zalm's message than a substantive answer.  In fact, it made me realize that there probably wasn't a substantive answer to Chris's criticisms.  Here is Vander Zalm's response:

http://www.youtube.com/watch?v=rO1NjpqWDIU&feature=related

Decide for yourself!!

Bus claims

Recently I looked at a number of files where people have been injured when they have fallen as a result of a sudden movement by the bus driver and want to make an ICBC claim. One might think, "so they fell - suck it up", but these people have all suffered fairly serious injuries (all fractured some bone or other).

The reality of our law in BC is that you have to prove that somebody was negligent and that negligence caused your damages (see my earlier post about an ICBC claim that went sideways).

So, just because the Vancouver bus driver slammed on the brakes does not mean he was negligent.

I have two things to say about these bus claims that I've reviewed. First, if you have been injured on a bus and want to make a claim - hire a lawyer right away, because you are more than likely going to mess it up if you deal with it on your own. I looked at two cases this week where I refused one claim because the previous law firm didn't take the proper steps and I looked at another where a colleague of mine at McComb Witten handled it from the beginning. My colleague put together a good claim because he asked the simple question "who was negligent here?" and took steps to find the person who was negligent (and it may not have been the bus driver). Second, don't bother unless you are seriously injured!!!

Need a Physiotherapist in North Vancouver?

In an oral judgment for a ICBC claim for a Vancouver car accident, Justice Leask commended the knowledge and skill of physiotherapist Angelica Reeve of 19th Street Physiotherapy.  Justice Leask confirmed my own opinion of Ms. Reeve when he described her as "extremely professional and thorough."  He went on to say that he accepted her evidence without reservation.

To Ms. Reeve's credit, Justice Leask described Ms. Reeve as the best physiotherapist that he ever had testify in his court.

I can confirm that Ms. Reeve was impressive in her knowledge and had a passion for her work.  Although I have never been a patient, I can say without hesitation that anybody looking for a good physiotherapist in North Vancouver would be well served to give Angelica Reeve a call at 19th Street Physiotherapy.

To make it easy, here is the contact info:

19th Street Physiotherapy
224 West 19th Ave, (the office looks like a house, but it really is the office)
North Vancouver
604-988-5221

Check out the website:

http://www.19physio.com/staff.html

Creating New Law

As a vancouver personal injury lawyer or a litigator in general, it is always a little satisfying to create new law...even if it is simply an incremental change in the law for the better.  Yesterday, in an oral judgment following a trial, Justice Leask moved the law forward in a very helpful way.

Under the Rules of Court in BC, it is very hard to obtain admissions of fact from another side.  There are very few tools to force the other side to make reasonable admissions of fact.  When a party has been found to unreasonably deny facts, the court can award as punishment costs against the unreasonable party.

In the past, the courts in British Columbia have only awarded a complete set of costs as punishment or no costs because the conduct was not bad enough to justify such a harsh penalty.  For some reason, despite having complete discretion to award any amount as costs, courts have not awarded a "slap on the wrists" amount for costs to encourage reasonable admissions.

Additionally, the court has traditionally only looked at lost or wasted court time as a measure for costs.  Considering that only 1% of ICBC claims go to trial, extra burden on the other party ought to be a factor to consider rather than simply lost court time.

In the decision yesterday in Eom v. Chand (as yet unpublished), Mr. Justice Leask awarded $1000 against ICBC as costs for unreasonably denying facts until mid trial.  The unreasonable denial did not take up much court time, but did put the plaintiff at quite a burden.

It is not an earth shattering change in the law, but it is a step in the right direction.

Diminished Housekeeping Capacity

In my last post before taking a hiatus (November 2006), I wrote about how the law is changing to better reward unpaid housework which is largely performed by women.  Since then I have done two trials where loss of housekeeping capacity formed a significant part of the award.

In O'Rourke v. Everett, 2009 BCSC 1277, the judge awarded my client $18,720 for loss of housekeeping capacity.  The replacement work was performed by her husband.  The law does not, nor should it, require that the work be paid for by an outside provider.  The logic is that wealthy people can afford to replace the loss of housekeeping services, where modest income people could not.  Therefore the rich would be receiving better treatment under the law. In reality, that statement is probably true, however, our courts in British Columbia strive to develop case law consistent with equality values in the Charter of Rights and Freedoms.  Read the case for yourself:

http://www.courts.gov.bc.ca/jdb-txt/SC/09/12/2009BCSC1277.htm

In Grewal-Cheema v. Tassone, 2010 BCSC 1182 the judge awarded $12,000 for loss of childcare services for the time that Ms. Grewal-Cheema was attending rehabilitation treatments.  Ms. Grewal-Cheema's husband rearranged his schedule to look after their child while his wife was at treatment.  The loss, however, is Ms. Grewal-Cheema's and not the husband's.  This type of claim is easy to overlook, but can be the difference between winning and losing a case.  Here is a link:
http://www.courts.gov.bc.ca/jdb-txt/SC/10/11/2010BCSC1182.htm

To my colleagues - I encourage you to push the law to drive towards equality.

To my clients - I give you my committment to know the law and search out evidence with you to prove all elements of your ICBC claim.

Adjustable height desk

When I moved my practice to McComb Witten, I purchased an adjustable height desk.  Having used it now for a while, I can easily say it is one of the best purchases I've made in a long time!

I bought the frame only from Geekdesk.  It comes with an electric motor which raises the height of the desk to any convenient level.  I can go from sitting to standing in about 20 seconds. 

For the desk top, I purchased a Gallant table top from Ikea and mounted it with some screws.  To give me some extra desk space, I purchased an extender and a separate 3 foot table top with stationary legs (my phone, head set and other items remain on the non-adjustable part of the desk).  Total desk space is about 78in x 78in L-shaped desk.

The desk does, however, have some limitations.  A coworker came into my office and abruptly leaned heavily on the extender which is not supported.  The extender gave way pretty quick in a rather large crash.  I had to remount the extender, but I haven't had any problems since.

I'm into the desk for about $1250 Cdn.  There are other options for a three legged adjustable height desk at Ergodepot which look to cost about $3000.  Considering how much I like my adjustable height desk, either would be a good option.  The Ergodepot desk would be a little more stable if someone leaned on it!!!

Personally, I go from sitting to standing about 2 times a day, with some days all sitting - some days all standing.  I found my posture improve within a few weeks!

Game 7

Ok...if there were ever a time for clouds to part and have the hockey gods shine down on Vancouver Game 7 is the time!!!

Please, please, please, please...we want The Cup.  We deserve The Cup.  Now is Vancouver's time!!!

ICBC Claim goes sideways

As I was getting my news (Canucks) hit from the Vancouver Sun, I saw a link to an article titled:

B.C. woman rear-ended in accident may lose driver's licence

www.vancouversun.com/technology/woman+rear+ended+accident+lose+driver+licence/4832794/story.html

The story is essentially about a woman who was injured in an accident that wasn't her fault, but she still owes money to ICBC to the tune of about $42,000.

The issue this woman faces is that, according to the judge, she seemed to have sued the wrong person.  The person that ran into her said she slipped on an oily substance on the road.  The owner of the vehicle leaking the oily substance was not discussed by the judge, but it seems that she did not sue the "John Doe" or ICBC.  I don't know when she hired her lawyer, but the person that was negligent was not known to her and the hit and run provisions would have applied to her.

If you have a hit and run situation, you have very, very strict obligations - failing which your claim could be dismissed and you would owe money just like this poor lady.  It highlights the importance of hiring a lawyer for your ICBC claim.

If you have questions call me at McComb Witten at 604-255-9018.