This week on Legally Speaking with Michael Mulligan:
In August of 2018, two sisters were walking their dogs on Central Saanich Road in Saanich BC when a vehicle struck them. One of the women, and her dog, were killed. The other woman survived with devastating injuries.
The woman who survived spent a year in the hospital. Her injuries included broken ribs, a spinal injury, and damage to an eye. Most significantly, however, was a traumatic brain injury.
She now has a severe impairment of self-awareness, short-term memory, and attention. She is not able to self-regulate, plan, or have a sense of time. She has outbursts and dysregulation, including perseveration, disinhibition, dysregulation of effect, irritability, anger outbursts, and a lack of insight. She is able to read to some extent and can do puzzles with her mother.
Despite all of this, ICBC alleged that the woman who survived did not suffer any injuries arising from the accident. It denied that the man who hit her was negligent even though he was charged and convicted of impaired driving causing death. It alleged that the woman had not followed medical advice and had failed to mitigate her damages.
Because the accident occurred prior to 2021, when no fault ICBC insurance was implemented in British Columbia, the woman was able to go to court and sue.
The vehicle driven by the man who hit the two women did not belong to him. Because of this, the woman who survived was able to sue not only the driver but also the owner of the vehicle.
When a vehicle owner lets someone else use it, the owner can also be liable for injuries and damage caused by the person who borrowed it.
The vehicle was in the process of being purchased from a car dealership by a relative of the man who was driving it.
Because the car dealership was unable to arrange financing it prepared an agreement saying the vehicle would be purchased for cash, even though the relative of the driver who was trying to purchase it clearly had no ability to pay cash. The car dealership let the relative take the vehicle home while it tried to arrange financing to complete the sale.
In British Columbia, the Consumer Protection Act makes consumer contracts void for unconscionability if there was no reasonable probability of full payment of the total price by the consumer.
As a result, the judge hearing the case concluded that the vehicle was still owned by the car dealership at the time of the accident and the car dealership was therefore jointly responsible for the injuries caused. It is likely that the car dealership was insured by ICBC which would explain why ICBC took the position it did in the case.
The judge hearing the case awarded the injured woman $5.5 million, in large part to pay for her care for the rest of her life. Because of her brain injury, she will need to live in an assisted living facility for the rest of her life.
As discussed on the show, it’s troubling that ICBC took the position it did in this case. Had the accident occurred after the no-fault system was implemented in 2021 the injured woman may have been left at the mercy of ICBC.
Also, on the show, another case dealing with government restrictions on suing for injuries in vehicle accident cases is discussed.
The BC government passed regulations limiting the amount that could be paid for medical and other experts in vehicle accident cases to 6% of any award to save ICBC money.
In the case discussed, the judge found the limit to be unconstitutional.