What If My Exotic or Classic Car is Damaged, Will I Suffer a Loss on Sale of the Car?

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by Peter Buxton, trial lawyer

CRUNCH!

Your precious exotic car has been damaged by another driver who was at fault.  If the repairs are extensive you may have to declare them on resale.  Can you add the anticipated loss in value of your car to a claim that you advance for repairs and perhaps personal injury?

Yes.  in Cummings v. 565204 B.C. Ltd. the Plaintiff was in a collision and her 2005 Nissan 350Z sustained more than $13,000 in damages that were repaired.  When she went to sell her vehicle she was told that it was worth less on account of the amount of damage caused by the accident.  In considering the Plaintiff’s claim for the lost value of the car caused by the negligence of the Defendant Madame Justice Gerow stated that:

71]        

[72]         Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.

[73]         It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.

(See also the decision of Mister Justice Punnett in Pan v. Shihundu.)

BUT HOW DO I GATHER EVIDENCE OF THE VALUE OF THE CLAIM?

classic-car-76423_960_720This is where Rob Fournier can assist you.  His company The Fournier Auto Group has a very useful blog that can give you information to assist in pursuing this type of claim.  In fact, Rob Fournier can provide an expert opinion for use in settlement or trial on the value of the loss.

WHAT IF I WANT TO ONLY BRING A CLAIM FOR THE ACCELERATED DEPRECIATION, CAN I DO THAT MYSELF?

There is a useful article written by lawyer Erik Magraken in his blog BC Injury Law on the issue of accelerated depreciation and suing for this loss yourself in the BC Small Claims Court.  I would strongly recommend that you read this article to better understand your remedy in court.

(I want to thank Rob Fournier and Erik Magraken for their assistance in providing material and expertise for this blog page.)

If you have suffered a loss on account of accelerated depreciation or any other accident-related matter and would like to have a free initial consultation regarding your claim and your right to compensation email me at pbuxton@panlegal.ca or call me at 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

Social Media – The Do’s and Don’t’s

 by Peter Buxton, trial lawyer

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 If you have been involved in a motor vehicle collision that was not your fault, you may choose to make a claim through ICBC and eventually commence an action in Provincial or Supreme Court.

Likely one of the allegations that you will make in your claim will be that your injuries have altered your physical ability and affected your lifestyle and quality of life.  These claims will allow the other party in the lawsuit, perhaps represented by ICBC and their appointed lawyers, to look into all aspects of your life to defend or disprove your claims.

This includes any social media that you use regularly.  Increasingly evidence of on-line activity is being presented in evidence and considered by the Courts.

Many lawyers will advise you to withdraw completely from using social media and “get off the grid”.  This can be easier said than done.  You do not have to give up your on-line presence but there are some “Do’s” and “Don’t’s” that will protect you and help you to make a successful claim.

DO

  • Above all, when making your claim, always tell your caregivers, the ICBC adjusters, your lawyer, your friends, and all others the truth about the impact that the collision and your injuries have had upon your life.
  • Continue to go about your life as you did prior to the collision but understand that everything that ends up on-line may be reviewed by investigators acting for ICBC and the other party in your litigation.
  • Adjust all of the privacy settings on your individual programs to limit access to your data by unknown individuals that you do not approve in advance.  You can curate your programs to restrict access to them by unwanted individuals.  Information on how to do this is readily available in the programs themselves or through Google or YouTube.

DON’T

  • Lie, mislead, exaggerate or embellish the effect that your injuries have had upon your life or your past lifestyle.
  • Comment on line about your injuries, ICBC, the Court, your job or your claim. Remember, your life on line will become an open book in your claim and law suit.

The courts have approached the issue of the disclosure of social media posting with caution.  In Dosanhj v. Leblanc et al. Master Taylor found that

[30]         I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind.

[31]         The plaintiff has provided an affidavit in response to the defendant’s application, in which she has deposed that she uses both her laptop and her iPhone to communicate with her lawyer over email and, in the case of her iPhone, using text messages.

[32]         As well, the plaintiff has deposed to being upset with the prospect of producing her Facebook account, her Twitter account, her computer and iPhone to the defendant as she feels they are private.  She has also deposed that she opened a Facebook account around the time of her surgery in 2006, mostly to see what other people were doing and to keep in touch with friends or family with whom she had lost touch.  The plaintiff has also deposed that she closed her Facebook account approximately a year and a half ago.

[33]         I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me….

[37]         Surely if the material sought by the defendant from the social media sites on the plaintiff’s computer is an invasion of privacy, the application for metadata, in the context of the case at bar, would also be a serious invasion of the individual’s privacy.  In any event, in the context of this application I would choose to exercise my discretion not to grant the application for metadata associated with the plaintiff’s files related to her resumes and cover letters.

However, at trial in Tambosso v. Holmes, Justice Jenkins found as follows:

  • [170]     Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.
  • [171]     One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular.

CONCLUSION

Tell the truth, do not exaggerate and make sure your privacy settings on your social media accounts are properly adjusted.

If you would like a free initial consultation regarding this topic or any other aspect of your ICBC claim contact Peter Buxton at pbuxton@panlegal.ca or 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

Hit and Run – Am I Protected?

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by Peter Buxton, trial lawyer

Wham!

You just had a serious car collision and it was not your fault.  You pull your car over and search for your insurance papers.  You look up and see the other driver leaving the scene.  What do you do?

First, if you can get the licence plate number of the other vehicle do so.  Write it down, together with the make, model and colour of the other vehicle.

Then, call 9-1-1 and report the accident and tell the operator that the other driver left the scene.  Do not chase after the other vehicle, you may be dazed and not capable of driving safely.

Get out of your car and look around for anyone who may have witnessed the collision.  Speak with them and write down their name and contact information and what they saw.  You can give this information to the police and ICBC to help in the investigation of the hit and run.

If you are able, quickly prepare a diagram of the scene and how the collision happened.  This will also help the police and ICBC.

Am I Able to Make a Claim for My Injuries and the Damage to My Car?

If you were involved in a collision on a roadway in B.C. and you cannot determine the identity of the driver that caused the accident you may be able to claim compensation directly from ICBC.  Section 24 of the Insurance (Vehicle) Act provides for payment for damages for those who are victims of hit and run collisions provided that:

  1. the loss occurred on a highway in B.C.;
  2. the injury, death or property loss occurred during the use or operation of a motor vehicle, and
  3. the names of the owner and driver of the other vehicle are not ascertainable.

Section 24(5) of the Insurance (Vehicle) Act provides that

(5) 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.

You will need to be aware of the time limitations for giving ICBC notice of the hit and run collision and the requirement that you take reasonable steps to determine the identity of the unknown motorist.  Reasonable steps can include putting a legible sign at the scene of the collision asking that witnesses contact you if they saw the accident and perhaps putting an advertisement in the local newspaper asking for witnesses to come forward.  Obviously you need to report the hit and run to the local police department so they can investigate.

Will ICBC Help Me to Identify the Other Driver and Tell Me About Section 24?

You cannot rely on ICBC to tell you of your obligations under Section 24, in fact in Fitger v. John Doe, Mr. Justice Meiklem commented that

[10]         Ignorance of the provisions of s. 24(5) is not an uncommon phenomenon. I do not know whether ICBC has a policy of deliberately not informing claimants such as Mr. Fitger of their s. 24(5) obligations, but there certainly does appear to be a practice of not advising claimants of their obligations, despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and are then belatedly faced with the invocation of s. 24(5) if settlement is not reached: Springer v. Kee, 2012 BCSC 1210 at paras. 82-93 and Li v. John Doe 1, 2015 BCSC 1010 at paras. 105-116.

In Li v. John Doe, Mr. Justice Armstrong rejected the Plaintiff’s argument that ICBC had a duty to advise its insureds of the requirements of Section 24 and that failing to do so prohibits it from arguing at trial that the Plaintiff failed to take reasonable steps under Section 24.  He stated that

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

So, the good news is that you can make a claim directly from ICBC for compensation in a hit and run situation but, you must be very careful to follow the provisions of Section 24 requiring that you make reasonable effort to identify the unknown owner and driver.

If you are the victim of a hit and run accident and would like to have a free initial consultation regarding your claim and your right to compensation pursuant to Section 24 email me at pbuxton@panlegal.ca or call me at 604.372.4550.

 Visit my website at https://panlegal.ca/peter-buxton-qc

ICBC Ordered to Pay $350,000 in Punitive Damages for Malicious Prosecution

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by Peter Buxton, trial lawyer

While it is appropriate for the Insurance Corporation of British Columbia to combat fraud in dealing with property and injury claims arising from motor vehicle accidents, the public expects that it will do so fairly and in good faith.  Unfortunately this is not always the case.

In the case of Arsenovski v. Bodin, Madam Justice Griffin of the British Columbia Supreme Court has ordered the Insurance Corporation of British Columbia to pay $350,000 in punitive damages for the malicious prosecution of Ms. Arsenovski who was alleged to be making a fraudulent claim following a pedestrian accident.

A Special Investigation Unit officer employed by ICBC alleged that Ms Arsenovski was fraudulently advancing a claim for being struck by a vehicle while crossing in a crosswalk.  In a Report to Crown Counsel he asked that charges be brought against the woman for making a fraudulent statement to ICBC.

However, Madam Justice Griffin found that the statement was not false and noted that the Crown had stayed charges against Ms. Arsenovski on the first day of the criminal trial.

[382]  The conduct of the liable defendants was high on the scale of blameworthiness. The defendant ICBC is a public insurance company. As an insurance company it is expected to act in good faith. As a public company, its employees are also expected to meet high standards of professional conduct.

[383]  One of ICBC’s key purposes and reasons for existence is to serve the residents of British Columbia, by providing compensation when someone is injured in a motor vehicle accident. The corporation does not serve the residents of this province when it uses tactics of intimidation to discourage civil claims.

[384]  Not only were the public resources of ICBC wasted by the malicious prosecution of Mrs. Arsenovski, it was foreseeable that this would lead to wasting of the public resources of Crown counsel and judicial resources on the day the case came to trial. Mr. Gould also encouraged other public agencies to take action against her without reasonable grounds to do so, namely health and immigration authorities. The wasting of such public resources to so vindictively pursue Mrs. Arsenovski is deserving of the highest level of condemnation.

Madam Justice Griffin noted that ICBC has significant resources to investigate and process claims and ought not to resort to intimidation by a police officer that it employs in its Special Investigation Unit.

[386]  It has to be remembered that ICBC already has all the tools of civil procedure at its disposal, as well as trained adjusters and a sophisticated defence bar, to assist it in defending civil claims. The civil discovery process is already well-equipped to investigate accidents and injuries, and compels the production of all relevant medical evidence if there is a question about whether an injury has occurred. These tools work very well.

[387]  People bringing lawsuits seeking damages as a result of personal injuries suffered in car accidents face a very public prying into all aspects of their private lives, which already can be a significant deterrent.

[388]  ICBC did not need to use the power and authority of a peace officer to intimidate people who might be injured by the use of a car.

The Court considered the effect of allowing ICBC to use these tactics and Justice Griffin commented

[394]  There is no doubt that conduct of the kind that occurred in this case could dissuade people who have proper claims from vigorously pursuing them against ICBC, and could even dissuade lawyers from acting on a controversial claim for fear that ICBC will disparage them and cause trouble for them or their clients in the future. A strong message of denunciation must be sent to ICBC.

[395]  While the community would find it reasonable for ICBC to fight fraud, I am confident that the residents of British Columbia would find it outrageous for a public corporation to use its resources maliciously. The conduct that occurred here must be condemned and punished to reflect the community’s censure and to ensure that the message is brought home to the corporation and its employees not to engage in this kind of misconduct again. The residents of British Columbia are entitled to expect professional, objective treatment by the employees of ICBC, as well as an appropriate degree of cultural sensitivity towards people who are recent migrants from other countries.

If you have concerns about how ICBC is dealing with your claim and would like more information contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling me at 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

Low Velocity Impact – Myth or Reality?

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by Peter Buxton, trial lawyer

Often an insurance adjuster will comment that a person involved in a relatively minor motor vehicle accident could not have been injured because it was a “low velocity impact”. Further, you may be told that ICBC does not not pay for injuries and disability in this situation.

This can be confusing and disconcerting to someone who has been told by their doctor to remain off work for a period of time because they are suffering from soft tissue injuries. Further, you may have been referred by your doctor for secondary care such as physiotherapy or massage therapy and have had to pay out user fees.  While ICBC may cover basic fees for this service, they may decline to pay so-called “user fees”.

What about time lost from work?  Who is going to pay for lost wages or opportunity to earn income?

While judges are cautious about finding that a person was injured in the absence of proper medical evidence, they are equally cautious about accepting this ICBC corporate doctrine and defence of low velocity impact.

In a recent decision in Supreme Court Justice Ball commented that

“it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.”

Duda v. Sekhon, 2015 BCSC 2393.

It is therefore important that if you have been involved in a motor vehicle accident and you believe that you have been injured, you should get your doctor to make a record of your injuries and you should follow your doctor’s advice regarding whether you are to take time from work and perhaps attend for physiotherapy or massage therapy.

Even in the face of engineering evidence raised by the defence, the Court will often prefer the expert medical evidence from the plaintiff’s doctors regarding resulting injuries.  In Pitcher v. Brown, 2015 BCSC 1415 Justice Betton stated that:

[106]     As to the forces involved and the probability of injuries resulting, the defence relies upon the opinion of two experts. Dr. Craig Good has a degree and Masters in Applied Science-Mechanical Engineering and a doctor in Philosophy in Mechanical Engineering. He opined that it is “highly unlikely that Ms. Pitcher sustained an acute Mild Traumatic Brain Injury at the time of the subject collision when her head contacted the head restraint.”

[107]     Gerald Sdoutz is a professional engineer who provided opinion evidence about the impact severity in the collision and compared it with activities such as sitting down in a low back office chair, coughing or sneezing or being jostled in a crowd.

[108]     While that expert evidence provides some insight I find its utility to be limited. It puts in perspective that the forces involved in the collision were modest. It does not preclude the conclusion that the plaintiff did receive injuries in this collision. In that regard I look to the expert medical evidence and the evidence of the participants in the collision. 

Do not just accept what your adjuster tells you about the force of the impact and their corporate policy regarding liability for your damages.  See your doctor and then see your lawyer for advice and representation if necessary.

 

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc