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Injured by vehicle but not while driving

Occasionally, we receive calls from clients in Vancouver who have been injured by a vehicle, but not while driving.

For example…

A car door opens right in front of a bicycle.  The cyclist crashes into the door and is badly hurt.  Or, a car hood is propped open for repairs. Suddenly, the hood comes crashing down on top of someone looking at the engine.  Or, a truck trailer is parked on a hill.  The load on the trailer unexpectedly shifts, causing both the trailer and the load to come crashing down the hill.  Or, a car tire explodes while being inflated, causing serious injuries.

In these circumstances clients frequently wonder if ICBC is required to compensate them for their injuries or if they should be seeking money and damages from some other party? In most circumstances, the answer is that ICBC will still be involved, frequently to the exclusion of all others

The law says that ICBC must compensate anyone who is injured in an “accident that arises out of  the use and operation of a motor vehicle.”  Where things can get complicated is in the definition of what is automatically included and what “arises from” the “use and operation.”

When ICBC attempts to deny these claims, it usually argues that the “cause” of the accident or injury did not “arise from” (occur as part of) the “use and operation” of the vehicle – (i.e. the cyclist could have and should have avoided the collision; the car hood was not properly secured by the shop doing the repairs; the load on the trailer was not properly secured by the trucking company; the tire was defective in its manufacture).

While it may be true that other factors and additional liabilities are involved, the Courts have consistently ruled that the key to determining whether or not you have a valid claim against ICBC depends largely upon on whether or not the activity that lead up to the injury is a normal or ordinary part of the use and operation of that vehicle.

For example, swinging the car door open in order to exit is obviously a normal part of that vehicle’s use and operation.  Likewise, it’s perfectly normal to prop the hood open in order to access the engine compartment as part of a vehicle’s maintenance.  Parking a trailer, with a load, on a hill, is also a normal part of its use.  And filling a tire with air is also part of the regular use and operation of a vehicle.  Therefore, in most cases, each of these would be valid ICBC claim.

The recent case of V-Twin Motorcycle School Ltd. v. Insurance Corp. of British Columbia is an excellent example of the type of situation where ICBC initially tried to deny a claim, but was ultimately held liable by the Court to compensate the victim.

V-Twin is in the business of providing motorcycle lessons to students. V-twin had a general commercial liability insurance policy issued by Lloyd’s Underwriters for its business operations and also held third-party liability insurance policies with ICBC covering the motorcycles themselves as well as other vehicles owned by the company.

In August of 2007, Shelley Robertson, a student participating in a motorcycle course, was told by an instructor to move the motorcycle of another student – not to drive it, but simply to push it along the road.  While attempting to do this, Shelley fell and the motorcycle came crashing down on top of her, resulting in serious injuries.

According to ICBC, liability for the accident fell upon the owners of the motorcycle school and the improper training of their instructors and students.  Therefore, ICBC argued that any damages should to be paid out of the school’s general commercial liability insurance.  For it’s part, Lloyd’s, the commercial liability insurance company, argued that the motorcycles themselves were clearly excluded from their policy and included in ICBC’s, therefore ICBC should pay.  The Court ultimately ruled that ICBC’s interpretation of the law and the circumstances was incorrect and that ICBC alone was liable to compensate the victim.

As part of its reasoning, the Court noted as follows:

[14]         What is an ordinary and well-known activity to which a vehicle is put?  The Supreme Court said that someone who uses a vehicle for a non-motoring purpose cannot expect to collect motor vehicle insurance.  For example, someone who got drunk and used her car as a diving platform to spring head first into shallow water could not expect coverage from a motor vehicle insurer.

[15]         In my view, it is an ordinary and well-known use of a motor vehicle to use it for instruction in the operation of a vehicle.  So for example, one would expect a motor vehicle to be used to train a new driver.  It may be used while driving on the road with the learner seated behind the steering wheel and the instructor seated in the passenger seat.  Equally, however, the vehicle may be used with the vehicle parked, no one within the vehicle, and the instructor identifying the controls to the student.  An instructor may show a student how to open a hood, check the oil, et cetera; none of these involve the vehicle in motion or driving, but are ordinary and well-known uses of a motor vehicle.

[16]         Moving then from cars to motorcycles, instructing students in the use of a motorcycle as part of a course in learning to operate a motorcycle is part of the ordinary and well-known use of a motorcycle.  In this case, V-Twin was using the motorcycle to instruct its students in pushing the motorcycle.  It is not unusual to see a motorcyclist pushing a motorcycle; surely it falls within the training provided by a motorcycle school to train its students in how to push a motorcycle.  The claimant was a student being instructed by V-Twin to push a motorcycle.  V-Twin was using the motorcycle for instruction.

Based on this, the Court concluded that “using a motorcycle to instruct students is a well recognized use of a vehicle” and that therefore ICBC was required to compensate the victim for her injuries, while also noting that “failure to warn or a failure to provide adequate instruction, do not create a separate and discrete cause of action independent of the use of the motorcycle,” meaning that Lloyd’s (the commercial liability insurance provider) and the company itself were not required to pay anything.

If you have been injured in, around, by, or near a motorcycle, car, truck, or trailer or have sustained any kind of personal injury due to the negligence of somebody else, please give us a call in Vancouver at 604-602-9000, toll free from anywhere in province at 1-877-602-9900, or use our convenient online form by clicking here.

There is no obligation to use our services, and we always provide you with a free initial consultation.  When you hire us we work on contingency, which means you never pay anything up front.  Our fee gets paid only when we settle your claim.

Please call or click now.  We are here to help.



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