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In personal injury cases, contributory negligence is sometimes pled on part of the defendant or the insurer of the plaintiff. It arises from situations whereby the plaintiff contributed to the accident and thereby caused some or all of the harm that he or she suffered as a result. Contributory negligence is dealt with in the Negligence Act of BC. Section 4 of the Act states the following:

Liability and right of contribution

4 (1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault.

(2) Except as provided in section 5 if 2 or more persons are found at fault

(a) they are jointly and severally liable to the person suffering the damage or loss, and

(b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in the degree to which they are respectively found to have been at fault.

Contributory negligence is a fairly popular defence used by defendants or ICBC in vehicle accident claims. One of these is what has been coined the “seatbelt defence” This defence is used by the defendant to pin some or all of the cause of the accident on the plaintiff. The seatbelt defence finds its roots in Yuan v Farstad, a 1967 British Columbia Supreme Court decision where Justice Monroe apportioned 25% of the liability to the deceased plaintiff for not wearing an available seatbelt and 75% to the defendant for causing the accident. The motor vehicle collision in that case caused the plaintiff to eject from the vehicle, causing him fatal injuries. At trial it was revealed that the plaintiff did have an available seatbelt but elected not to fasten it. This principle was further articulated by Justice Cory of the Supreme Court of Canada:

It has long been recognized that all occupants of a motor vehicle have a duty to wear their seat belts . . . Canadian Courts have recognized that passengers and drivers have a duty to ensure their own safety in a car by wearing seat belts. A failure to do so will result in an assessment of contributory negligence against that person. . . .

The Courts in this country have consistently deducted from five to 25 percent from claims for damages for personal injury on the grounds that the victims were contributorily negligent for not wearing seat belts. This has been done whenever it has been demonstrated that the injuries would have been reduced if the belts had in fact been worn.

While the seatbelt defence is increasingly used in personal injury and ICBC cases, it’s not applied without reservations. Courts have expressly articulated that there must be a cause-and-effect relationship between an unfastened seatbelt and the injuries suffered. In other words, there must be convincing evidence that the failure to wear a seatbelt caused or aggravated an injury suffered. Absent this logical nexus, the courts are reluctant to apportion liability between the parties, despite the prevalence of the seatbelt defence.

Join Kautz Injury Law again next week as I, Darren Kautz, will discuss another area of personal injury law.

By: Darren Kautz

Ever wondered to what extent the things you tell your lawyer are confidential? Often privilege is asserted in various ways on communications between the client and lawyer so that information remains confidential and does not prejudice the client later on.

Privilege is one of the most crucial areas of litigation in general, and personal injury law in particular. There are two prominent types of privilege that operate within the realm of personal injury law: solicitor-client privilege and litigation privilege. Litigation privilege concerns the process of litigation. To determine whether litigation privilege can be asserted, the courts consider whether the information came into existence for the dominant purpose of use in actual or anticipated litigation.  This means that any communication between the client and the lawyer which occurs in tandem with anticipation of litigation can establish litigation privilege. Accordingly, this privilege can also be extended to third parties who are not parties to the litigation. In essence, this type of privilege is established when litigation is anticipated and applies to all communications or documents that concern that case.

Solicitor-client privilege on the other hand refers to the general communications between a client and a lawyer. There need not be anticipation of litigation as this type of privilege is presumed to exist when the client and lawyer enter into a representative agreement. However, solicitor-client privilege does not extend to third parties and is in place only to allow clients to have frank and accurate conversations with their lawyers.

While solicitor-client and litigation privilege are related, there are important distinctions that must be drawn between the two. Justice of Appeal RJ Sharp identifies three main areas in which solicitor-client and litigation privilege must be differentiated:

  1. Solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature.
  2. Solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself.
  3. The rationale for solicitor-client privilege is very different from that which underlies litigation privilege. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

 

The last point made by JA Sharp is crucial in personal injury cases. There needs to be a forum that allows clients to confide in their lawyer so that the lawyers can represent and advocate for them accordingly.

Join Kautz Injury Law again next week as I, Darren Kautz, will discuss other areas of personal injury law.

By: Darren Kautz

The Occupiers Liability Act deals with injuries sustained on the premises occupied by, or belonging to, an entity. It may also extend to other entities such property management companies and leasees. A particular area of interest in personal injury cases arising out of the Act is the ability of occupier to contract out of liability with a party. This measure often takes the form of an exclusion clause in a contract that abrogates or limits the liability of the occupiers for any potential injuries suffered by anyone on the premises.

Section 4 of the Act deals with these exclusions. It states the following:

Contracting out

4  (1) Subject to subsections (2), (3) and (4), if an occupier is permitted by law to extend, restrict, modify or exclude the occupier’s duty of care to any person by express agreement, or by express stipulation or notice, the occupier must take reasonable steps to bring that extension, restriction, modification or exclusion to the attention of that person.

(2) An occupier must not restrict, modify or exclude the occupier’s duty of care under subsection (1) with respect to a person who is

(a) not privy to the express agreement, or

(b) empowered or permitted to enter or use the premises without the consent or permission of the occupier.

(3) If an occupier is bound by contract to permit persons who are not privy to the contract to enter or use the premises, the duty of care of the occupier to those persons must, despite anything to the contrary in that contract, not be restricted, modified or excluded by it.

(4) This section applies to all express contracts.

 

Section 4(1) explicitly requires the occupier to bring the exclusion clause to the attention of the other party when the contract is being signed. Absent this notice, the courts are likely to hold the exclusion clause unenforceable. In limited circumstances, however, courts have rendered the limited liability clause enforceable despite lack of notice to the other party. These situations mainly involve sophisticated commercial parties who ought to be aware of certain inherent risks and industry practices and guard themselves against injury accordingly.

Join Kautz Injury Law next week as I, Darren Kautz, will discuss another area of personal injury law.

By: Darren Kautz

Video surveillance is increasingly becoming a tactic used by ICBC to investigate claims and see whether the plaintiff is actually injured to the extent portrayed in his or her claim. While these tactics are sometimes helpful to weed out potential fraudsters, they are very invasive and pose a number of issues for legitimate claimants.

Footage of the plaintiff may include various actions performed by the plaintiff which may prejudice their interests in the claim against ICBC. Specifically, ICBC may use that information to cease paying benefits to the injured party. This measure is considered as detrimental to many subjected to this tactic as they may cease receiving income replacement such as total temporary disability benefits.

Courts have been wary of such tactics. Justice Ian Josephson of the BC Supreme Court said that there is a high hurdle in front of ICBC in these situations as their adjusters “are going to have to be able to demonstrate in every single case that they cut off benefits for a good reason.” If ICBC is unable to justify their actions in court, it will likely be subjected to punitive or aggravated damages.

Legal scholars in the area opine that such deceptive practices may even amount to insurer bad faith. Gordon Hilliker, for example, posits that while the insurer is entitled to take “reasonable investigation of a claim that has been presented so as to determine whether or not the claim is legitimate”, bad faith “may arise out of the insurer’s use of harassing, intimidating, intrusive or deceptive investigative practices or claims procedures.”

What often escapes the purview of clients is that an experienced counsel can still effectively advocate on their behalf even though there is footage of the client engaging in various activities. What is of utmost importance is the type of activities that is portrayed on the video, not their mere occurrence.  Consider the following example:

Suppose that Mary was injured in a car accident and is now claiming damages for a shoulder injury. Specifically, she is unable to raise her right arm above her head. Due to this specific immobility, she was forced to quit her job and suffered wage loss as a result. During the time in which she is dealing with a claims adjuster, ICBC obtains footage of the party engaging in various activities in her backyard. She is raking leaves, mowing the lawn, and planting flowers. The ICBC adjuster reviews the footage and stops Mary’stotal temporary disability benefits, claiming that she had recovered from her injuries and could return to work.

In this example, an experienced personal injury lawyer would advocate on May’s behalf by stating that she specifically suffered damages because she could not raise her right arm over her head. The footage merely shows her doing a number of chores which did not require her to raise her hand over her head. Law presumes injured parties to live their lives as they would even if the party is suffering from damages. In our example Mary was simply doing just that, living her life.

Ready for a twist?

What if Mary claimed she had to hire someone to do her yard work, and she was specifically seeking damages from ICBC as a result? Is the video surveillance damaging to her claim?

Join us Kautz Injury Law again next week as I, Darren Kautz, will discuss another topic in personal injury law.

 

By: Darren Kautz

Hit-and-runs are perceived to be problematic for an injured party who cannot identify the defendant driver who has fled the accident scene. However, the BC Insurance (Vehicle) Act does provide some remedies for aggrieved parties seeking compensation for the injuries they have suffered in hit-and-runs.

Claims for Hit and Run

Under section 24 of the BC Insurance (Vehicle) Act, an injured party can bring an action against ICBC to claim damages. In these situations ICBC is considered as a nominal defendant. Nominal defendants have no connection to the lawsuit in a sense that they are not responsible for the injuries suffered by the party;. However, they are held as defendants by the courts because they still have some connection to the lawsuit as the other vehicle’s insurer. Further, significant weight is put on the necessity of naming ICBC as a defendant in these cases because it would be otherwise impossible for the court to decide all issues before and render a just and equitable judgment for the aggrieved party.

Plaintiff Responsibilities

In hit-and-run cases, the Plaintiff is subjected to certain requirements. Section 24(2) requires the Plaintiff to notify ICBC by written notice “as soon as reasonably practicable and in any event within 6 months after the accident that caused the bodily injury, death or property damage.” Potential Plaintiffs who wait too long to notify ICBC forfeit their rights and remedies under the Act.

Section 24(5) prescribes additional requirements. It mandates the Plaintiff to investigate and attempt to identify the defendant driver. Section 24(5) states the following:

In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that

(a) 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

(b) the identity of those persons or that person, as the case may be, is not ascertainable.

Section 24(6) deals with situations in which the identity of the defendant driver becomes apparent. The section states that if the identity of the defendant driver becomes known before the judgment is rendered by the court, then that defendant must promptly be substituted in for ICBC.  This is to ensure the defendant driver, who was responsible for the injuries suffered by the Plaintiff in the first place, is held accountable for his or her actions.

The Plaintiff in hit-and-run claims is entitled to the same heads of damages that were previously discussed on our blog. Specifically, the Plaintiff is able to make a claim for general damages, past wage loss, cost of future care, loss of earning capacity, and any special damages arising from out of pocket expenses in relation to the injuries suffered as a result of the hit-and-run.

Join Kautz Injury Law again next week as I, Darren Kautz, will canvass other areas of injury law.

By: Darren Kautz

A significant amount of uncertainty surrounds loss of earning capacity as a head of damage. This form of compensation considers how the injuries suffered by the plaintiff impact his or her ability to work in the future.

Loss of earning capacity takes various forms; the three most popular ones involve the following scenarios:

  1. The injured party is no longer able to return to work after his or her case is settled. Sometimes the injuries are chronic and negatively impact the party’s ability to return to work. This impediment must be quantified and accounted for.
  2. The injured party is able to return to work, however, his or her responsibilities are drastically reduced as a result of the injuries sustained in the accident. In this scenario, the inability to perform his or her usual task may result in reduced hours of work, and consequently, reduced pay. The quantification will consider pre-accident earnings and post-accident earnings to arrive at dollar amount that reflects that loss of earning capacity.
  3. The injured party has lost an employment opportunity as a result of the injuries. In this scenario, the injuries cause the party to miss a promotion or other employment opportunities that he or she would have received if it wasn’t for the injuries sustained. Quantification in these situations is difficult because the causal link between the injuries and missed opportunity may be too remote to establish a connection.

Loss of earning capacity continues to dominate the debate in personal injury law. While in some cases the quantification is straight forward and intuitive, in others it involves careful analysis and advocacy in part of the personal injury lawyer to establish the requisite connection between the injuries suffered and the loss of earning capacity.

Join Kautz Injury Law again next week as I, Darren Kautz, will discuss other areas of personal injury law and the current debates and difficulties that surround them.

By: Darren Kautz

Cost of future care refers to expenses that will be needed to pay for care of the injured party in the future. Under this head of damage, courts often delve into an exercise of estimation and quantification which considers a number of aspects.

First, the past care of the injured party is considered in light of his or her current needs. This means that the courts will look at what type of care the injured party received as a result of injures, and how likely that care, or one of similar nature, is likely to continue in the future.

Second, the courts may refer to a Medical Legal Report compiled by the inured parties’ physician which gives a thorough and holistic medical perspective on the injuries sustained by the aggrieved party. While an MLR is not always requested by the Plaintiff counsel, when it is available, it forms a significant party of the inquiry underlying cost of future care. It is the norm for medical practitioners to draft a specific portion on the MLR which is dedicated to future care and needs of the injured party.

Lastly, testimony from the party along with recent receipts outlining medical expenditures may serve to highlight the party’s ongoing medical ailments as a result of the accident which are likely to continue in the future. In this regard, consistency in expenditure showing continued treatment is a significant factor in proposing that the party will continue suffer similar financial losses in the future due to the accident.

There is no exact formula as to how future care costs are calculated. Rather, it takes effective and diligent advocacy on behalf of your personal injury lawyer to represent your best interests.

Join us again at Kautz Injury Law as I, Darren Kautz, will discuss the fourth and final form of compensation in personal injury cases, special damages.

By: Darren Kautz

 

The name says it all. Past wage loss refers to the amount of pay that an injured individual forgoes as a result of his or her injuries. Wage loss often forms a substantial part of settlement claim as it specifically relates to income loss due to the person’s inability to work, or alternatively, work with limited functionality that also hinders income generation.

Due to its very nature, sometimes it is very straight forward to calculate wage loss. In a simple scenario, the injured claimant would keep track of days missed from work due to the accident and multiply that by the hourly rate that he or she gets paid and arrive at a number. Often, however, it is not as straight forward. What if the aggrieved person was receiving an annual salary rather than hourly wage? What if he or she missed an opportunity for a promotion because of absence from work? In cases involving seasonal work, how is wage loss to be calculated if the absent time from work spans across various seasons?

In not-so-clear-cut cases, courts often rely on a holistic approach to attempt and quantify wage loss. To begin, the injured parties’ income tax returns may be indicative of wage loss if a clear disparity can be noted between the time the person is incapable of working due to injuries and the time in which he or she was capable of working. To further substantiate such claims, it is often helpful to consider employment records and the nature of work. These will often create a snapshot of the employee’s occupational tendencies and trends. Sometimes, a clear distinction can be drawn on work productivity between pre and post-accident time periods.

The lawyer acting for the injured party may also have to research and consider industry modalities and practices in order to gain further understanding on the particular field in question. For example, semi-truck drivers are subjected to restrictions on how many consecutive days or hours they can drive. These restrictions can impact a claim for wage loss since they restrict the claim within the four corners of the regulations. In other words, a semi-truck driver cannot claim 180 hours of wage loss in a month if he is restricted to a maximum of 90 hours of driving per month.

So, it may be more than a simple calculation. It often isn’t. Personal injury lawyers are equipped with deep knowledge and understanding of various industries and fields. This puts them in a unique position to be able to consider the law and advocate for an injured client whilst being cognizant of industry practices and regulations.

Care to further your understanding on this subject? Consider the following scenario:

Brittany is a hostess at a popular local restaurant. She works approximately 25 hours a week at rate of $13 per hour. Occasionally, she works overtime at a rate of $26 per hour during busy seasons. Brittany was involved in a motor vehicle accident on October 1, 2017 .

What further information would you need to know in order to calculate Brittany’s wage loss? Comment below!

Join Kautz Injury Law again next week as I, Darren Kautz, will speak on future care expenses as a head of damage which can form part of a personal injury claim.

By: Darren Kautz

In a personal injury claim there are four ways that the aggrieved victim can be compensated. Referred to as “four heads of damages”, these forms of compensation are the following:

1.       general damages;

2.       past wage loss;

3.       cost of future care; and

4.       special damages.

 Join us for the next four weeks as we discuss each head of damage in turn and provide insight as to what they entail.

What are “Damages”?

Well, “damages” does not espouse a conventional meaning of “damage”, but it is connected to it. “Damages” refer to monetary value that can be affixed to compensate for a loss or injury.  In other words, it seeks to compensate an aggrieved party through a monetary sum and put that aggrieved party back to the position he or she would have been if the injury had not occurred.

With that out of the way, let’s dig in.

General Damages

The most common form of compensation in personal injury and ICBC claims are general damages. These refer to compensation relating to physical and psychological pain and suffering that an injured party experiences as a result of a motor vehicle accident or any other injury. In other words, it’s money given to an injured party to make up for loss of intangibles. Put it this way, if you are involved in a motor vehicle collision (let’s say you were rear-ended), and you hit your head on your steering wheel upon impact, you may experience intermittent or persistent headaches thereafter. What this head of damage does is that it tries to quantify a monetary sum that corresponds to your headaches.

General damages are also referred to as “non-pecuniary damages”, or “non-pecs”. These refer to damages that are not readily quantifiable. While non-pecs can relate to other areas of law such as situations involving, for example, lack of enjoyment on a vacation, they form a substantial portion of a personal injury claims.

We know that general damages seek to compensate the Plaintiff for intangible losses such as physical and psychological pain and suffering. Do you see an inherent complication in this approach? There is a big one. Due to its subjective nature, there is no precise formula that would readily yield specific numbers for the type of injury. Therefore, past case law, combined with statutory limits allows personal injury practitioners’ to gain valuable experience in the area. This experience or “know how”  provides the basic foundation of such claims as it enables them to advocate for your rights accordingly. Therefore, it is important to consult an experienced personal injury lawyer as soon as you are injured so that proper steps can be taken to ensure your maximum compensation for the injuries you have suffered.

Think you got a handle on what general damages are? Test your knowledge:

Which of the following are considered general damages:

(a)    You missed a shift at work the day after your accident because of pain in your upper back.

(b)   You had trouble sleeping the night of your accident due to pain in your neck.

(c)    You received physio therapy treatments to alleviate some of the symptoms of your injury.

(d)   You had difficulty driving your car due to post-MVA anxiety and were required to take a taxi to work for a week.

Comment below!

Join us at Kautz Injury law next week as I, Darren Kautz, will discuss employment and wage loss as a result of injuries sustained in an accident.

By: Darren Kautz

ICBC insurance scheme is divided between at-fault and no-fault regimes.

Fault is determined per the rules of the road. The BC Motor Vehicle Act, along with court decisions, form the basis in which ICBC determines whether a driver in a motor vehicle collision is at fault. To determine fault, ICBC investigates the accident scene, reviews police records (if any), interviews witnesses and other drivers to see what occurred during the incident.

Once fault is determined, if the at-fault driver is not happy with the decision of the adjuster, they can bring their grievance in two internal mechanisms within ICBC. The first is to speak to adjuster’s manager who is involved in every at-fault decision. The second is to ask for a Claims Assessment Review, whereby the at-fault driver can formally petition CAR to review the decision within 60 days of the accident. If these internal review processes don’t result in a preferred outcome, the at-fault driver can bring a claim in court against ICBC. This latter course of action is the more authoritative avenue in overturning an at-fault assessment.

At-fault Accidents and Your Premiums

If you are involved in a motor vehicle accident and found at fault, there is a high chance that your premiums will increase. That being said, this measure is sometimes alleviated if you have a long claim-free record. Additionally, if you are involved in more than three at-fault accidents in three years, you may be subjected to multiple crash premiums. These are additional premiums you would have to pay as a result of multiple at-fault accidents.

At-fault Accidents and Coverage

If you are found at fault and have previously purchased collisions coverage, then ICBC will pay for damage to your vehicle. However, if you don’t have collision coverage, then ICBC will not pay for any damage to your vehicle. More importantly, being found at fault also means that you will not be receiving monies for wage loss, pain and suffering, and cost of future care. These damages account for a bulk of most ICBC settlements.

Whether you are found at fault or not, it is always better to consult with a personal injury lawyer who specializes in ICBC claims so that you have a formidable chance of receiving a fair outcome at the end of an ICBC claims process.

Join us again next week as I, Darren Kautz, will discuss other areas in personal injury law.