Friday, September 24, 2010

Court refuses ICBC's application to withdraw admission of liability

In Surerus v. Leroux, a decision released by the BC Supreme Court today, the court refused to allow ICBC to withdraw an admission that their insured driver was responsible for an accident.

Mr. Surerus was rear-ended by Mr. Leroux in September 2006.  Mr. Surerus filed a lawsuit against Mr. Leroux in 2008.  In the lawsuit, it was alleged that the accident was the result of Mr. Leroux's negligence, including having faulty brakes on his car.

In responding to the lawsuit in the Statement of Defence, ICBC which was representing Mr. Leroux admitted that the accident was Mr. Leroux's fault.

It was not until August 2009 that the defendant told ICBC that his brakes had failed unexpectedly.  ICBC's lawyer the tried to withdraw the admission of liability on Mr. Leroux's behalf on the basis that ICBC had not addressed its mind to the issue of faulty brakes when they admitted liability.

The Supreme Court Master refused the application because the Mr. Surerus' lawsuit had very specifically noted that faulty brakes was a cause of the accident, and the Master therefore felt that the specific allegation had been brought to the defendant's attention.  He also felt it would be unfair to the plaintiff to have to try to refute a "faulty brake" defence some four years after the accident, when there was no evidence of what had happened to the vehicle or whether it was still available for inspection.

This case is of interest to personal injury lawyers for a number of reasons.  First, in a rear-end collision, it is generally accepted that the rear vehicle is responsible for the accident.  ICBC normally, and quite properly, admits liability in these cases.  Lawyers often rely on this standard to assess whether they are prepared to accept a case, and also as a basis for fee arrangements.

Secondly, litigation strategies and decisions are made based on whether liability has been admitted or denied in the defence to the lawsuit.  If defendants were able to easily withdraw those admissions, court cases could become lengthier and costlier.

From a plainitff's lawyer point of view, this decision protects the rights of innocently injured people from lengthy delays and unnecessary expense when dealing with the ICBC injury claims.

Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at

Monday, September 20, 2010

Judge finds that injuries from car accident can develop over time.

In the case of Vershinin v. Hayward released today by the BC Supreme Court, Mr. Justice Grauer did not accept ICBC's argument that an injury must be felt and complained of immediately after an accident. 

Mr. Vershinin was involved in a serious accident which completely destroyed the front of his car.  He suffered a number of obvious and immediately apparent injuries.  However, a dispute arose over the cause of a shoulder injury for which he ultimately had surgery.  ICBC, which was representing the defendants, argued that the shoulder injury could not have been caused by the accident because Mr. Vershinin did not have complaints about shoulder pain until three to four months after the accident.

The judge decided that there was a perfectly normal explanation for the lack of complaints because the shoulder injury only became noticeable when Mr. Vershinin was able to return to normal activities as his other injuries healed.

This case demonstrates the importance of maintaining a diary of your injuries, including any pains and problems that develop over the months following an accident.  The totality of your injuries are not always obvious immediately following an accident, and may not be obvious to your doctors.

Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at

BC Supreme Court supports reduced earning capacity in chronic pain case

On Friday, September 17, 2010, the B.C. Supreme Court released a judgment in Knight v. Belton, a Prince George case.

Ms. Knight was a dental hygenist and mother of two.  After her accident, Ms. Knight suffered several months of headaches, vertigo, and neck pain. She also suffered right shoulder pain for about a year and she had on-going chronic pain and periodic right shoulder pain.

What is particularly interesting about this case is that ICBC did not want any award to be given to Ms. Knight for her loss of future earnings, even though her pain caused her to be less energetic and less capable of pursuing full employment.  The Plaintiff asked for $300,000 to make up for her diminished earning capacity while ICBC asked for an award of $0.  After examining Ms. Knight's potential future earning and calculating what she might now make given her chronic pain, Madam Justice Gray awarded $300,000, in addition to awards for pain and suffering and a number of other categories.

ICBC tends to fight quite vigourously against demands for compensation for potential future earnings loss.  This case demonstrates that the Courts will make reasonable awards where justified, but taking a case to trial is sometimes necessary.

Disclaimer:  This post is not intended as legal advice.  Every ICBC claim is different and dependent on its facts.  To obtain advice on a specific claim, please visit  us at