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.