Part 7 benefits and pre-existing injuries.

Part 7 benefits, also known as “No Fault” benefits, are benefits owed to parties injured in motor vehicle accidents in British Columbia. These benefits are payable regardless of who is at fault for a car accident, hence the moniker “No Fault” benefits. These benefits will cover a portion or all of various treatment expenses.

ICBC may attempt to use the presence of a pre-existing injuries as a justification for denying Part 7 benefits; the reasoning being that ICBC should only be responsible for injuries actually caused by a motor vehicle accident. However, it should be noted that there is a large difference between a pre-existing condition that contributes to an injury that later requires treatments and a pre-existing condition that is the sole reason for the treatment. Furthermore, the onus lies on ICBC to prove that “but for” the pre-existing condition, the treatments in question would not be required:

As per a recent Court of Appeal decision:

[67]         The judge concluded at para. 42 that ICBC had failed to prove that, but for the pre-existing condition, Mr. Kozhikhov would not have needed the treatments then claimed under Part 7.  He granted Mr. Kozhikhov summary judgment in the amount claimed of $10,863.86.

[68]         The judge was faced with conflicting medical evidence.  He assessed this evidence in his role as the trier of fact.  He then applied a legal standard (the “but for” test of causation) to the facts as he found them.  The judge’s finding cannot be traced to an error in his characterization of the legal standard.  Therefore, his findings are reviewable on the deferential standard of palpable and overriding error.

[69]         In my opinion, the judge’s findings were clearly open to him on application of the “but for” test of causation.  His findings of fact are well supported by the evidence.  ICBC has failed to identify a palpable and overriding error of fact, or any error of law, so it is not for this Court to intervene: Housen v. Nikolaisen, 2002 SCC 33.

http://www.courts.gov.bc.ca/jdb-txt/ca/15/05/2015BCCA0515.htm

This recent decision re-affirms an injured party’s right to Part 7 benefits despite a pre-existing condition. If ICBC wants to deny benefits, they must prove on a balance of probabilities, that the benefits would not be required if the pre-exiting condition did not exist. ICBC must also prove that the pre-existing condition would have resulted in the need for treatments in question regardless of the new accident related injury.

Future Costs of Care

Care costs can be one of the biggest financial worries to an injured party. The cost of even simple treatments, such as physiotherapy and massage therapy, has increased dramatically. These costs can be especially burdensome to someone who is limited in their ability to earn income. For someone with a long-term or permanent injury these expenses can continue long after their case is settled. Depending on the nature of the injury, these future care expenses can be an injured party’s largest losses. Injured parties may, therefore, be entitled to awards not only for past expenses but also for expenses they are likely to incur in the future.

A recent Supreme Court of British Columbia case awarded a plaintiff a large Cost of Future Care award:

http://www.courts.gov.bc.ca/jdb-txt/sc/16/00/2016BCSC0081.htm

Here, a plaintiff suffered a whiplash type injury, which eventually developed into chronic pain and led to various psychological injuries. The courts awarded the plaintiff costs that were deemed “reasonably necessary” costs necessary  to restore the plaintiff to their pre-accident condition to the extent that is possible. All costs had to be objectively justified by medical evidence. The plaintiff, who was likely to suffer from ongoing physical and psychological injuries well into the future, was awarded $200,000 for Cost of Future Care.

The judge in this case relied heavily on the evidence of expert witnesses who stated the plaintiff required various forms of treatment to treat his ongoing injuries. This illustrates the importance of ensuring you have effective counsel who will pick and fund the retention of these medical experts.

Sharing the road with cyclists: are cyclists obligated to ride on the shoulder?

As bicycling has become a more common way to commute, the number of personal injury actions involving cyclists has increased. Significant confusion about where a cyclist is supposed to ride remains. It is well established that bicycles do not belong on sidewalks, but are they obligated to ride on the shoulder? The shoulder is the area to the right of the fog lines on a highway. It is an area that motor vehicles are not permitted to drive on.

Section 183 of the Motor Vehicle Act provides that cyclists must “ride as near as practicable to the right side of the highway“. The Court of Appeal of British Columbia determined whether the highway included the shoulder:

http://www.canlii.org/en/bc/bcca/doc/2014/2014bcca276/2014bcca276.pdf

This case involved a cyclist who was struck by a motor vehicle. The cyclist was in the far right section of the lane but was not using a readily available and paved shoulder. The Court of Appeal decided that the “highway“, for the purpose of interpreting Section 183, did include the shoulder and that cyclists had an obligation to ride on the shoulder where “practicable“.

Despite the above, a cyclist who is struck after choosing not to ride on the shoulder may still have a very strong personal injury case. Firstly, even in the above case, the driver of the motor vehicle was found to be 70% at fault. The fact the cyclist was riding on the road did not alleviate the driver’s duty to look out for cyclists. Additionally, there may be circumstances where it is unsafe to ride on the shoulder and not “practicable“. For example, the shoulder may be covered in gravel, unpaved, or obstructed by snow or other debris. As such, any injured cyclist should always consult with an experienced personal injury lawyer as they may have a better case than they presume.