What Do I Need To Prove To Win My Surrey Personal Injury Case Against Surrey ICBC Claim Defence Lawyers?
MacLean Personal Injury lawyers know that Surrey ICBC personal injury claim victims like you deserve proper compensation for your suffering and economic loss. and that’s why it’s critical that our Surrey Personal Injury Lawyers explain ICBC claim defences to you.
These ICBC defence strategies, which can cost you big money, involve denials of negligence by ICBC and types of negligence ICBC will allege you did that make your injuries partly your fault. Remember – don’t meet with ICBC representatives before you meet with us.
The MacLean Personal Injury lawyers act across BC at our South Surrey, downtown Vancouver, West Kelowna and Fort St John offices. Our Surrey personal injury department head can be reached at 604 576 5400. Managing partner Lorne MacLean, QC field an impressive team of associates, paralegals and assistants to handle minor to catastrophic personal injury cases. Our Surrey and Vancouver personal injury lawyers are fluent in Punjabi, Mandarin, Cantonese, Hindi and Farsi as well as English. Communication between client and lawyer is key so feel free to tell us your story in the language you are most comfortable in.
MacLean Law’s Surrey personal injury and ICBC claim lawyers find it helpful to explain to our clients some of the defences used by ICBC lawyers to a motor vehicle action. It is important to mention that applicable defences will depend on the specific facts and nature of each case.
Two of the most common defences to motor vehicle actions are:
a) The No Negligence defence; and
b) The Contributory Negligence defence.
Why Do I need To Prove Fault and Negligence?
Without a positive finding of negligence you get no money. It’s critical you hire a top personal injury lawyer to ensure your case is properly presented to ICBC lawyers, adjustors and the Judge hearing your case.
No Negligence Defence
When discussing the No Negligence defence with our clients we make sure to explain to them that a plaintiff must establish on a balance of probabilities a prima facie case of negligence against the defendant. This threshold is critical in motor vehicle actions since a failure to do so can result in a finding of no negligence. Further, negligence cannot be inferred in situations where the defence succeeds in producing an alternative explanation of how the accident could have happened without negligence on the defendant’s part.
An example where the court dismissed the plaintiff’s case as failing to show on the balance of probabilities that the defendant was negligent under the circumstances is Johns v. Friesen (2011). This case involved a single motor vehicle accident where the defendant’s vehicle lost control on a patch of black ice and skidded out striking a center median. The Honourable Madam Justice Kloegman determined that although the defendant admitted that he should not have braked, braking in such a situation is an automatic reflex to try to regain control of the skidding vehicle. Further, the plaintiff did not suggest that this automatic reaction of the defendant could be the sole foundation for a successful allegation of negligence.
The court recognizes in these types of cases that although there were other courses of action defendant drivers may have taken to prevent the accident, the standard of care is not perfection. The proper test is whether the driver responded reasonably in an emergency situation.
Why Do I Need to Beat A Finding Of Contributory Negligence Against Me?
Any finding of contributory negligence against you reduces the money you receive by way of settlement or trial award. If you did or failed to do something that in part caused your own injury then you get less money. Talking to ICBC before talking to us can be fatal to your claim.
The test the courts apply to determine what constitutes contributory negligence is found in Nance v. British Columbia Electric Railway Co. (1951). Viscount Simon states:
But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
It is important to remember that not only must the contributory negligence be a cause of the loss, it must be the proximate or effective cause. The loss must result from the type of risk to which the plaintiffs expose themselves rather than from a totally different danger as explained by the courts in McLaughlin v. Long (1927).
Our aggressive ICBC claim and personal injury legal team are lead from our Surrey office and can be reached directly at 604 576 5400, or you can use our toll free number across BC at 1 877 602 9900, or complete our quick and convenient online form to set up a free initial consultation at any of our 4 offices.