Mussio Goodman Wins Against ICBC in Court

As previously discussed, when an injured motorist first informs ICBC of the accident, one of the questions they may be asked is whether they were working at the time of the collision. The reason is, if both drivers involved in the accident were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to the injured person, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the situation in our recent case of Quillen v. Linnea.

In January 2011, our client was a subcontractor working construction for the defendant, a sole proprietor who was also an old friend. On the morning of the accident, our client agreed to meet the defendant outside his personal residence so they could travel to the jobsite together in one vehicle.

Our claim alleges that in the course of transferring his personal belongings from his own vehicle into the defendant’s truck, our client was run over by the defendant.

ICBC argued that our client should be prohibited from pursuing an injury claim because both he and the defendant were working at the time of the accident. In particular, ICBC submitted that our client attended the defendant’s residence at the direction of the employer, that the Defendant’s truck was a “crew bus”, and that transportation to the worksite was within the scope of our client’s employment.

On behalf of our client, Eric Goodman argued that our client’s longstanding friendship with the defendant must be considered. Our client did not rely on the defendant or his alleged “crew bus” for transportation to work, nor was it a part of the employment contract; rather, our client’s acceptance of rides in the truck was more akin to a carpooling arrangement between two friends who also happened to work together.

The WCAT tribunal agreed:

[67] In particular, I note [the defendant’s] answer to the questions about why he and the plaintiff would ride together in [the defendant’s] truck, since the plaintiff had his own vehicle. [The defendant] stated: “We were going to the same job.” This suggests an arrangement of convenience…

[68] In addition, the evidence does not support the defendants’ argument that the plaintiff reported to the meeting place at the defendant’s residence as a result of instructions from the defendant…

[69] I find that the evidence is more consistent with a ride-sharing or carpooling arrangement between workers than with the plaintiff reporting to an assembly area of the employer’s premises with the purpose of continuing to the work site in transportation provided or arranged by the employer.

With this result, our client is now entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from severe orthopedic injuries he sustained in the accident.

Court Awards Our Client $204,000 For ICBC Blunder

As we recently announced, after our client rejected ICBC’s $25,000 offer, we proceeded to trial and were awarded $204,000 in the Supreme Court of British Columbia.

With any successful judgment, we were also awarded “costs”, which is essentially an award of additional money to compensate for the work performed over the course of the litigation and, in turn, a means to lighten the amount of legal fees the client has to pay.

In this case, the costs were prescribed at $14,000. However, litigation rules allow for a “double costs” penalty if a settlement offer was made before trial, the offer was not accepted, and the trial award exceeded the offer.

In our case, our client offered to settle for $125,000 before trial. ICBC rejected this offer and refused to budge from $25,000.

At the costs hearing, ICBC argued that our client’s offer should not have been reasonably accepted, and therefore the additional costs penalty would not be appropriate.

The Court rejected ICBC’s argument as follows:

[9]             The plaintiff offered to settle both actions for $125,000 on October 1, 2012. The offer expired on Friday November 23, 2012 before the beginning of trial on November 27, 2012. The plaintiff argues that the conduct of the defendants in taking an unrealistic negotiating stance and the failure of the defendants to accept a reasonable offer entitles the plaintiff to double costs.

[29]         In my view, the plaintiff’s offer was reasonable at the time it was made and ought to have been accepted. I have a discretion to award double costs from the time of the offer. In exercising that discretion and to avoid the need to calculate tariff items and to avoid an assessment, I fix the costs, apart from disbursements, for both actions at $24,000.00.

This case underscores the risk of taking a hardline negotiating approach in the face of a reasonable offer to settle. If ICBC’s intention is indeed to keep costs down, it would behoove them to play less hardball and avoid these penalties 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.

Mussio Goodman was Successful in Supreme Court of British Columbia for Liability of Bus Driver

We are pleased to announce that the Supreme Court of British Columbia has found the defendant bus driver liable for our client’s broken ankle and shoulder.

In this case, our client was attempting to catch a bus which was stopped at s bus stop. He ran towards the bus, approaching from its front and waving his hand in an attempt to get the bus driver’s attention.

The bus driver admitted to having seen our client running towards the bus; nevertheless, the bus driver closed the bus door and pulled away from the stop just as our client was within reach of the vehicle. The moving bus collided with our client’s hand as he waved from the curb, causing him to fall under the wheels of the bus.

The bus driver argued that he had a strict policy to close the doors and pull way from the stop even if the pedestrian is one foot away from the vehicle.

Accordingly, while attributing some fault on the pedestrian for running towards a moving vehicle,  the Court also found that the bus driver, Mr. Cooper, was careless in departing given the proximity of the would-be passenger:

[66]         The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman’s approach.

 [68]         …Mr. Cooper’s conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in Wang, the question is whether there was a real risk of harm that could reasonably be avoided.

[69]         In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver’s attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper’s part. Again, that is particularly so given the manner in which Mr. Heyman was approaching…

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.

Mussio Goodman Wins Another WCB Tribunal Decision Against ICBC

When an injured motorist first informs ICBC of the accident, one of the questions they may be asked is whether they were working at the time of the collision. This is because, if both drivers were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to any injured party, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the case in Yushchenko v. Costa.

In this case, the Plaintiff drove from his office to meet his mother at home for lunch. The car accident occurred as he was on his way back to work.

Generally speaking, an injured party is not declared to be “working” pursuant to the Workers Compensation Act if the accident occurred during a lunch break. However, ICBC argued that the Plaintiff was defined as a “traveling employee”, meaning the nature of his employment required him to drive. As a consequence of being a traveling employee, ICBC asserted that his lunch break was still within WCB’s jurisdiction since it was a routine part of his work day.

We argued that the Plaintiff’s lunch break was anything but routine. Rather than choosing to eat in the company lunch room or driving to the closest available eatery, the Plaintiff’s lunch break required a substantial deviation from his work routine in that he drove out of his way to have lunch with his mother. The lunch, therefore, constituted a distinct departure for a personal errand, and therefore, WCB coverage does not apply.

The tribunal agreed:

[54] This was not a case of the plaintiff stopping for a meal in the course of a journey. Rather, this was the case in which the plaintiff drove some distance, away from the central area of one municipality where the temporary work location was located, to a residential area of an adjacent municipality for the purpose of going from to have lunch with a family member. While the crossing of municipal boundaries has no significance in itself, it may in some circumstances flag the fact that the journey had a special purpose.

[55] This was also not a situation in which the plaintiff had to travel some greater distance due to limited options for having lunch in the area of the temporary work location. Rather, it appears the plaintiff was motivated by personal factors in his decision to have lunch at home. In particular, he had arranged in advance to have lunch at home where family member prepared lunch for him.

[56]…The fact that he was meeting a family member, and drove some distance beyond what would have been necessary to locate a convenient place to have lunch, support a conclusion that the plaintiff was engaged in a distinct departure on a personal errand.

[57] Accordingly, I consider workers’ compensation coverage did not apply in relation to the plaintiff’s travel… I find therefore that the plaintiff’s injuries did not arise out of and in the course of his employment.

With this result, the Plaintiff is now entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from a severe back injury he sustained in the accident.

Mussio Goodman has Successfully Won $290,400 for Our Client

We are pleased to announce that, after declining ICBC’s offer to settle for $115,000, our client proceeded to a two week jury trial resulting in an award of $290,400.

The primary issue in this case was “causation”. In April 2009, our client was rear-ended at a red light in New Westminster. ICBC deemed the impact “low velocity” due to the minimal damage to our client’s vehicle, the repairs for which were estimated at $400.

In the years leading up to the accident, our client was diagnosed with severe spondylosis, otherwise known as degenerative disc disease of the cervical spine. However, our client suffered minimal pain and neurological symptoms from her condition prior to the collision.

After the accident however, our client suffered a severe escalation in her symptoms, and eventually underwent an invasive surgical procedure called a decompression laminectomy of the cervical spine.

There were two competing arguments in this case. Ours relied on the “thin skull” principle, which essentially means “you take your victim as you find them”. We argued that our client was in a fragile state at the time of the accident; she was predisposed to a significant injury due to her pre-existing condition. While a healthy 18 year old could have very well walked away from the impact unscathed, in our client’s case, the collision was the tipping point that resulted in surgery and her ongoing disability.

ICBC, on the other hand, relied on the “crumbling skull” principle. The health of our client, they argued, was on a trajectory of decline prior to the accident, and it was only a matter of time before she needed the surgery in any event.

ICBC therefore argued that they should not be held responsible for our client’s pain and suffering, wage loss and treatment expenses since she was going to end up in the same disabled state regardless of the accident.

The trial involved twenty expert reports and almost two dozen witnesses, including several neurologists, neurosurgeons and orthopaedic surgeons.

In the end, if the final award is any indication, the jury appeared to favour the evidence of our client, as well as that of the medical specialists testifying on her behalf. We are thrilled with the result and wish her all the best in her continuing recovery.

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.