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Vancouver Sun Interviews Eric Goodman on ICBC’s Rate Increase

Posted on by Mussio Goodman

BC Media Giant, Vancouver Sun, Interviews Mussio Goodman Lawyer on ICBC Rate Increases

As reported on the front page of The Vancouver Sun, ICBC has applied to increase rates by 5.5 per cent to cover the rising cost of insurance, so says ICBC spokesperson Adam Grossman. “Here in B.C., in 2013, our injury claims in one year were $1.9 billion. That’s up by more than $500 million from just five years ago,” stated Grossman.

While ICBC attributes the increase in accidents to distracted driving and a rise in smartphone use, ICBC also blames the rising cost of injury claims on higher legal and medical costs.

However, as explained by Eric Goodman to the The Vancouver Sun, ICBC has failed to paint the entire picture:

Vancouver lawyer Eric Goodman said that ICBC could do much more to decrease its legal costs when it comes to injury claims.

“The reason why legal expenses have risen is because ICBC is becoming less and less interested in making reasonable offers early in the litigation. The result is that these injury claims are open longer and at a far greater expense,” he said.

His firm has filed access-to-information requests with ICBC, and discovered that between 2008 and 2012 there was an increase of more than 2,000 open claims that were two years or older.

As each case drags on, Goodman said that ICBC is on the hook for medical experts and lawyers to defend their claim, as well as the injured person’s lawyer and medical reports.

According to ICBC, less than one per cent of injury claims end up going to trial, but Goodman said that figure doesn’t give the whole picture.

“Files are being kept open for five years instead of two. There’s no need to have the extra three years of having to pay costs.”

Click here to read the full article in The Vancouver Sun.

Hit and Run Accidents: What You Need to Know

Posted on by Mussio Goodman

What You Need to Know About Hit and Run Accidents

A story was recently published about a devastating hit and run collision which took place on Pacific Boulevard between Abbott and Carrall Street in Vancouver.

In the wake of this unfortunate incident, we thought it important to provide the general public with some important information for individuals who are injured in hit and run accidents.

If you are injured by an unidentified motorist, you can claim against ICBC directly for compensation under the Insurance (Vehicle) Act.  It should be noted that the law of negligence still applies in this situation. If you are clearly at-fault for the accident, you will not be successful in an injury claim against ICBC even though the other driver took off.

An example of this situation was recently provided in Ormiston v ICBC 2014 BCCA 276. Here, ICBC successfully argued that a cyclist was fully at fault for an accident which caused injury, even though the other driver left the scene and was not identified afterwards.

If you are injured by an at-fault unidentified driver, there are still some very important statutory requirements with which you must comply following the accident. The most litigated aspect in hit and run accidents is whether the Plaintiff took “all reasonable efforts” to identify the at-fault motorist. This is required under s. 24(5) of the Insurance (Vehicle) Act.

In some respects, ICBC wants you to “play detective” in finding the driver who left the scene. In certain situations, this may involve canvassing the neighbourhood in the days and weeks following the accident. In other situations, it may involve thinking quickly in the few moments after to accident to take down a license plate number. However, every situation is different and therefore “all reasonable efforts” is a sliding scale.

 

Legal Decision on Hit and Runs:

In Morris v Doe 2011 BCSC 253, Madame Justice Ker provided a very useful summary detailing what constitutes “all reasonable efforts” with respect to different situations under s. 24(5):

[54]         Two specific time periods are relevant under the s. 24(5) inquiry: the time of the accident and the days or weeks following the accident. If reasonable efforts could not be made at the time of the accident, e.g. due to shock or injury; a belief that the party has not sustained any injury; or the driver fled the scene before information could reasonably be obtained, the court examines the steps taken by the plaintiff to ascertain the identity of the negligent driver in the days or weeks following the accident. What constitutes all reasonable efforts is a factual issue decided on a case by case basis.

[55]         An examination of the jurisprudence on what constitutes reasonable efforts reveals the following principles:

a.       depending on the plaintiff’s condition at the scene of the accident, it may not be realistic to expect the plaintiff to obtain particulars as to the identity of the offending driver particularly where the plaintiff is in shock or confused or injured…

b.       failure to record a licence plate number at the time of the accident when the plaintiff has the opportunity to do so or obtain information as to the driver’s identity, either personally or through the assistance of others, but does not take advantage of the opportunity amounts to a failure to take reasonable steps at the time of the accident…

c.       simply notifying the police of the accident may not be sufficient to satisfy the requirements of s. 24(5)…

d.       the Act does not put the responsibility to find the unidentified driver on the police; rather the responsibility lies with the plaintiff…

e.       where a plaintiff does notify the police of the accident, it is not reasonable for them to simply assume the police will make the necessary inquiries without following up with the police and checking to see if there was an investigation and if so what progress was being made in it…

f.        simply reporting the matter to the police and ICBC, without more, has led to the dismissal of a plaintiff’s action for failure to comply with the requirement of taking all reasonable steps to ascertain the identity of the driver…

g.       where the police attend the scene of the accident and take witness statements and indicate they are investigating the hit and run accident, it may not be necessary for the plaintiff to take any additional steps, depending on the circumstances…

h.       a plaintiff placed in a position of danger at the time of the accident cannot be expected to remain in that position to obtain details of a licence plate and movement to a position of safety before trying to obtain any licence information does not constitute a failure to take reasonable steps at the scene of the accident…

i.        posting signs in the area of the accident and/or advertising in local newspapers in an effort to find witnesses within a reasonable time after the accident where the accident occurs at a busy intersection is a reasonable and expected step as it is possible that someone present at the time of the accident could be of assistance in ascertaining the identity of the driver of the vehicle that left the scene…

j.        failing to post signs at the scene of the accident or place advertisements in the newspaper in a timely manner or in a manner that provides insufficient detail where it is possible that there were potential witnesses who may have information about the accident will result in a denial of coverage under s. 24 of the Act…

k.       repeatedly canvassing regular patrons of the business where the plaintiff’s vehicle was damaged in the parking lot of the business may constitute reasonable steps to ascertain the identity of the driver…

l.        posting signs and advertising in local newspapers may not be a reasonable step where the accident occurs on a high speed area of highway or a on highway in an area that is undeveloped and sparsely populated…

m.      once it is found that a plaintiff acted reasonably in believing they had the information that would be required, such as a licence plate number, there is no onus cast upon them to undertake a highly speculative further investigation upon being advised they have the wrong license plate number…

n.       a plaintiff will not be foreclosed from pursuing ICBC as the nominal defendant in a hit and run case where they rely upon information provided by the offending driver that subsequently turns out to be untruthful…

o.       failure to follow up on directions to take additional steps such as posting signs for witnesses or advertising, once advised the recorded licence plate number is incorrect will result in a denial of coverage under s. 24 of the Act…

p.       failing to make a timely report to the police and failing to follow up on available information from the scene of the accident such as information in the possession of ambulance personnel who attended the scene will result in a denial of coverage under s. 24 of the Act…

q.       the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity…

If you have been injured in a hit and run accident, contact your personal injury lawyer to ensure all statutory requirements are met so your claim is not at risk of being dismissed.

ICBC Appealing Mussio Goodman Victory to Supreme Court of Canada

Posted on by Mussio Goodman

Mussio Goodman Achieves Victory in Supreme Court of Canada

The British Columbia Court of Appeal ruled in our client’s favour, overturning the lower court’s decision and prohibiting ICBC from relying on a zipline waiver to deny compensation for injuries sustained in a car accident.

ICBC has since sought leave to appeal the decision to the Supreme Court of Canada in Ottawa.

ICBC’s argument is that the decision was wrong and has implications across the country.

We have argued in response that the Court of Appeal decision was properly decided, and that the issue specifically pertains to British Columbian legislation (the Insurance (Vehicle) Act), and therefore the highest Court in the land need not intervene.

Should the Supreme Court of Canada grant leave to ICBC, the hearing will likely take place in early 2015.

Client Awarded $340,000 At Trial After Rejecting $83,000 ICBC Offer

Posted on by Mussio Goodman

Mussio Goodman has Obtained $340,000 At Trial for Client

We are pleased to announce that, after our client declined ICBC’s pre-trial offer to settle for $83,000, we proceeded to trial in the Supreme Court of British Columbia and obtained an award of $340,000 for pain and suffering, wage loss and medical expenses.

In July 2009, our client was rear-ended by a drunk driver at high speed and pushed into opposing traffic.  As a result of the accident, she sustained soft tissue injuries to her neck, back, and right knee.  She also started exhibiting symptoms of post-traumatic stress disorder and heightened anxiety and depression.  Aside from a brief period immediately following the accident, our client was not able to return to her job as an apartment manager.

The primary issue in this case was whether our client’s symptoms flowed from her accident or whether they flowed from her pre-accident medical conditions, i.e., whether she was a “thin skull” or a “crumbling skull”.  Our client had a lengthy history of pre-accident health concerns, including “episodes of depression, panic attacks, respiratory difficulties, high blood pressure, low back pain and injuries suffered in previous motor vehicle accidents”.  This being the case, ICBC argued that our client did not suffer significant wage loss as a result of the accident because her pre-accident health problems would have disabled her even if the accident had not occurred.

 

Supreme Court of British Columbia Judge Decision

Mr. Justice Smith rejected this argument, finding as follows:

Despite her pre-existing problems, the plaintiff remained functioning and employed up to the date of the accident.  There is no evidence that any of her previous problems were disabling or that they were progressing and there is no medical evidence that any of them would necessarily have done so.

In this case, the picture is that of a person who had multiple long standing physical and psychological problems by was managing to cope with them, perhaps only just coping.  I find the accident was a final blow that she could not cope with or recover from and in that sense, she was a classic thin skull.  There is no doubt that the accident caused or contributed to her current condition.

This case demonstrates the fact that the court does not always view pre-accident medical conditions as a weakness in a plaintiff`s case.  To the contrary, such pre-accident conditions are sometimes seen to make plaintiffs more vulnerable to injury and can lead to higher than expected awards at trial.

It should be noted that every case is different and that past performance is no guarantee of future results.  It should also be noted that very few injury claims require a resolution in a courtroom; in the vast majority of cases, we are able to negotiate a fair settlement with ICBC on behalf of our clients.  However, in the event ICBC refuses to make a reasonable offer, we are always prepared to take the case to trial.

BC Court of Appeal Rejects ICBC’s Attempt to Remove Client’s Website

Posted on by Mussio Goodman

24 hours Vancouver Recently Reported on the Mussio Goodman Court Success

As reported by 24 Hours Vancouver, we are pleased to announce that ICBC has lost for the second time in trying to convince our Court that the website belonging to Wes Mussio’s wife (icbcadvice.com) was infringing on ICBC’s trademark.

In 2012, the BC Supreme Court ruled in favour of Mussio; however, ICBC appealed the decision to the BC Court of Appeal.

ICBC’s primary argument was that the use of “ICBC” in a website domain name by a personal injury lawyer was misleading and in breach of ICBC’s intellectual property rights. In particular, ICBC argued that the average consumer would likely believe that ICBC itself was offering advice on its business, rather than an independent entity.

The BC Court of Appeal disagreed and dismissed the appeal as follows:

[37]         I am unable to accept this argument as it fails to give the “relevant consumer”, i.e., an Internet user, credit for even the most basic understanding of the function of a domain name.  Even though there is some resemblance between ICBCadvice.com and ICBC’s family of marks, the average Internet user with an imperfect recollection of ICBC’s marks would not likely be mistaken by the domain name.  They understand, for example, that a domain name which, in part, contains the name of a business or its acronym will not necessarily be affiliated with or endorsed by that business and may, instead, be the subject matter of the website or entirely unrelated to that business.  As well, they understand that it is necessary to view a website to determine whose site it is.

[39]         As indicated above, I am unable to accept that the average Internet user does not appreciate that domain names—which are limited to short combinations of alphanumeric characters—are often merely descriptive of the subject matter of the website to which the domain name resolves, rather than indicating affiliation, source, or endorsement.  Put otherwise, a person who conducted a search—using, for example, the terms “ICBC” and “advice”—which returned ICBCadvice.com in its list of results would not, based solely on observing that domain name, mistakenly believe that the “advice” referred to is provided or endorsed by ICBC.  Neither would they, as a matter of first impression, be mistaken by the fact that the domain name starts with “ICBC”.  The most that person would conclude is that the website likely had something to do with the corporation.

[40]         In the result, I agree with the trial judge that the website ICBCadvice.com and its related domain names do not contravene ss. 9 and 11 of the Trade-marks Act.

Wes Mussio, who represented his wife in both the Supreme Court and Court of Appeal, is quoted by 24 Hours Vancouver as saying that there’s a sizable list of domain names with the letters “ICBC” in them, such as icbctips.ca or icbc-claims.com, but “they never went after any of them.”

Mussio said his wife created the website in 2006 to share information from motor vehicle injury lawyers, and to refer potential clients to a list of lawyers on the site.

“She thought it would be a good idea to retain some lawyers, including me, to write articles and put up a public service website so people are better informed. At the time it was done, there weren’t a lot of websites with information back in 2006,” he said.

The website also offers a book — earlier named ICBC Claim Guide, and later changed to ICBCadvice Claim Guide. An online version of the book is now available.

Court Rejects ICBC’s “Common Sense” Injury Analysis

Posted on by Mussio Goodman

Court Sides with Mussio Goodman for Injury Analysis

Sometimes moderate or severe injuries can result from a relatively minor collision. In these cases, ICBC typically takes a hard line approach, arguing “common sense” dictates that a minor collision cannot result in anything but a minor injury. Unfortunately for ICBC, the laws of British Columbia and the laws of physics state otherwise.

Vehicle manufacturers design modern cars to crumple on impact. They do this in order to absorb the force that is being transferred from one body to another. Therefore, if there is more damage on impact, less force is being transferred to an occupant and more to the vehicle. However, if there is little damage to a vehicle, it does not necessarily mean that the impact was insignificant. A possible explanation is that the force from the impact was transferred elsewhere (i.e. to the occupants of a vehicle).

In Dunne v. Sharma, our court recently confirmed that there is no presumption in law that low velocity impact collisions cannot cause significant injury to a claimant. In Dunne, ICBC tried to use the “common sense” approach that a minor accident cannot cause a moderate to severe injury. The Court rejected ICBC’s argument as follows:

[90]         Dealing first with the low velocity and minimal material damage aspect, I note that the defendants have tendered a report prepared by an engineer with expertise in the field of accident reconstruction. The essence of his opinion is that in each of the subject collisions, the velocity change experience by the plaintiff’s vehicle was probably less than about 12 km. per hour. The photographs contained in his report also demonstrate that the damage done to the cars by the collision was quite modest.

[91]         I appreciate that to have to been the case and I accept that common sense might generally dictate that a minor collision would not be expected to result in significant injuries. However, there is simply no basis upon which I am able to extrapolate the information concerning the velocity of the collision to a conclusion that the plaintiff’s injuries must therefore necessarily be of a certain type and degree. As has been judicially observed in a multitude of cases, the court cannot conclude that because the impact of the collision was relatively minor, then any resulting injuries must necessarily be minor as well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, 38 A.C.W.S. (3d) 924 (S.C.):

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.