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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.

Our Court Confirms No Double Standard for Cyclists

Posted on by Mussio Goodman

Court Confirm That Bikes Can Be At Fault For Accidents, Like Cars

Looking around the city during our recent spate of sunny weather, it is nice to see the numerous bike lanes in Vancouver being put to some use. The City of Vancouver installed these bike lanes to protect cyclists against accidents, so they should take advantage of them and ride in the designated areas whenever possible.

Of course, there are times when a cyclist must share the road with motor vehicles as well. In these cases, many believe that cyclists should not be held to the same standard of care as motor vehicle drivers, because it is the latter group who are more vulnerable.

However, the law holds a different view.

The case of Miles v Kumar 2013 BCSC 1688 provides a good example of how cyclists are held to the same standard of care on the road. The Plaintiff was cycling on Grandview Highway when he made a lane change in front of a vehicle driven by the Defendant. The lane change was careless, despite the fact that the Plaintiff was on a bicycle and the Defendant was in a car. Mr. Justice Bernard made the following conclusions:

[62] In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.

[63] In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

The bottom line is that a careless lane change is a careless lane change, whether you are operating a bicycle or a motor vehicle. This is true for any other rule of the road. Needless to say, the cyclist will suffer the brunt of any collision with a car, regardless of fault. However, the law does not discriminate; even if a bicyclist is seriously injured in an accident that was their fault, they will have no legal recourse.

For this reason, cyclists need to be remain particularly vigilant of their surroundings on public roads.

Specific safety tips and regulations for cyclists can be found here.

The Importance of Keeping Business Records For a Wage Loss ICBC Claim

Posted on by Mussio Goodman

Keeping Records is Vital for your ICBC Claim Process

Many of our clients are self-employed labourers performing contract work. In these cases, when their injuries are affecting their ability to earn a living, we always stress the importance of creating a paper trail in order to prove their resulting wage loss.

For example, if a claimant has to turn down a job opportunity, he should confirm in writing with the would-be employer what the opportunity was, and how much it would pay.

In cases where an injured subcontractor is forced to hire extra workers to perform the labour he would have otherwise done himself, it is important to maintain invoices or receipts so those expenses may be considered as part of the ICBC claim.

In the absence of these records, and especially where there is a poor practice of record keeping prior to the accident, the Court is hesitant to fully compensate a claimant for the losses claimed.

An example of this can be found in the reasons of Musgrove v. Elliot, 2013 BCSC 1707. In that case, the injured Plaintiff was self-employed as a builder of residential decks and fences. Since his injuries impacted his ability to work, he was forced to rely on labourers to do the work in his stead. While the Court accepted his claim in principle, it awarded only a fraction of the damages sought due to a lack of corroborating records:

[56] In late 2007 Mr. Musgrove moved to the Victoria area and began to establish himself in his own business as a fence and deck builder. He had perhaps 10 months to build that business before the first of his two accidents, and in that time he kept lamentably few records of his earnings or expenses.

[57] There is thus little reliable evidence of what Mr. Musgrove actually earned before the first accident, and evidence of actual earnings is usually the most reliable basis on which to assess damages for income losses claimed as a result of an accident.

[58] Mr. Musgrove’s poor record keeping habits continued after the accidents, leaving little upon which to base a confident assessment of what he has earned since the first accident, or what he has paid out to others to do work he says he could and should have been able to do himself but for his injuries…

[72] I am satisfied that as a result of the injuries he suffered in the accidents, Mr. Musgrove had to hire others to do work that he would have done himself had he not been injured. This represents a loss to Mr. Musgrove for which he should be compensated.

[73] Mr. Musgrove must accept responsibility for the consequences of his poor or non-existent records. One such consequence may be an award lower than it might have been had he kept proper records. In all of the circumstances, I assess Mr. Musgrove’s loss of earning capacity at $20,000 from the time of the accident to trial.

Written by Wes Mussio of Mussio Goodman Law Group