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“CAUSATION” PITFALL IN VANCOUVER INJURY CASES

MacLean Law’s Vancouver Personal Injury Lawyer team knows the complexities of difficult and painful Vancouver personal injury cases. A top Vancouver personal injury lawyer can identify the strengths and weaknesses in your Vancouver personal injury case when you are injured in a Vancouver ICBC injury accident. We can help you develop a cogent strategy to ensure you and our Vancouver Personal Injury Lawyer team work to obtain justice for you and your family members from ICBC or other defendants who are liable for your injuries. Today’s blog is by Tal Wolf who spent a a decade and a half as a personal injury trial lawyer in California before joining us in our family law and personal injury departments.

It’s Not About The Money, It’s About Justice Then It’s About The Money

Tal Wolf Vancouver Personal Injury Lawyer

Tal Wolf Vancouver Personal Injury Lawyer 604-602-9000

The best Vancouver Personal Injury Lawyer knows that while -The idea of “causation” in personal injury liability may seem like it ought to be simple: a defendant’s act “caused” an injury if the harm would not have occurred unless defendant committed a negligent (or intentional) act. So, if the other guy smashed you from behind while you were waiting at a red light, he should be responsible for all of the losses you suffer in consequence, right?

A Vancouver personal injury lawyer understands that in some cases where events follow the main impact with your vehicle including, for example, a secondary collision, or your own subsequent conduct placing you in the path of harm, insurance companies for the party that smashed you may go to great lengths to avoid responsibility for your losses. Defense lawyers may call it a failure to prove “proximate” cause, arguing that the mechanism of your injuries could not reasonably have been foreseen by the defendant; or they may suggest that another unforseeable force or event “intervened” between the original act of negligence and the ultimate injury.

A good Vancouver Personal Injury Lawyer will explain how the plan for a successful recovery in your case depends on how it occurred but also on how you deal with you Vancouver ICBC personal injuries after they have happened.

Take the rather extreme, but rather unfortunate example of an injury discussed in the recent case of Ray v. Bates, 2015 BCCA 216, where the Court found the chain of causation sufficiently broken that the defendant was absolved of liability:

1     H. GROBERMAN J.A. (orally):– The question on this appeal is whether the plaintiff is entitled to recover damages for personal injuries suffered when he slipped and fell while walking along an icy road. It is not alleged that the defendants’ negligence directly caused the plaintiff to fall, nor that they were responsible for the slippery conditions of the road. Rather, it is alleged that the situation in which the plaintiff decided to walk along the road was brought about by collisions caused by the defendants’ negligent operation of their motor vehicles.

2     The summary trial judge found that the collisions were not the proximate cause of the plaintiff’s injuries and also rejected any broader theory of causation based on the idea that the plaintiff was a “rescuer”. The plaintiff appeals, arguing that the judge failed to apply the proper test for liability in rescue cases.

. . . .

8     All parties agreed to have the matter heard by way of summary trial. The judge found that the collisions were a result of the defendants’ negligence. He did not accept, however, that the defendants’ negligence, or the collisions, were the proximate cause of the plaintiff’s injuries. He said:

·  [31] It must be observed, however, that [when the plaintiff was prompted to approached the ambulance], police, fire/emergency responders, and the ambulance were all in attendance. There is no indication that [their] communication with appropriate maintenance was in any way impaired. Traffic flow was being effectively managed, and vehicles were travelling past the accident location without difficulty.

·  [32] There was no urgent situation and no basis to conclude the emergency personnel in attendance were not taking all appropriate steps to ensure public safety.

·  [33] The plaintiff references the accident procedures document that says governed his employment. Even assuming that he would be subject some discipline for failing to follow its guidance, its directions include notifying appropriate authorities. He had contacted his employer and significant emergency resources were already in attendance. Accordingly, there is no basis for the plaintiff to say that he was compelled by the accident procedures guideline to do what he did. I cannot conclude that the plaintiff’s injuries were caused by the negligence of any of the defendants.

. . . .

12     Often, in a negligence case, the chain of causation will be broken where an independent voluntary human action intervenes between the negligent act and the injury. The principle, often expressed in Latin as “novus actus interveniens” can be difficult to apply, and admits of certain exceptions.

13     In this case, the plaintiff’s decision to leave his vehicle and walk down a slippery road would seem to break the chain of causation between the defendants’ negligence and the injury . . .

Hire A Top Vancouver Personal Injury Lawyer Early On To Be Safe

Thus, even if the defendant has admitted fault, there may be plenty of opportunity for the insurance company to litigate, or even force your case to a trial. A good personal injury lawyer will craft a legal and factual theory that will minimize this potential pitfall, and counteract the defense lawyer’s attempt to shift blame.

While the Ray v. Bates scenario may seem peculiar, there are more common scenarios where causation – or more precisely, a lack of causation – are cited in order to weaken the plaintiff’s settlement leverage. For example, if you don’t seek medical care right after your accident, you leave open the argument that you actually suffered the injury during a subsequent event that took place before your first complaint to a medical provider. The longer you wait to treat, the harder it may become to prove causation; which, by the way, is the plaintiff’s burden to prove.

Similarly, plaintiffs often simply forget to report their full symptoms to the initially treating physician (or the doctor fails to document them). If your back pain is terrible, but your knee pain only moderate, you still must remember to report both to the doctor as soon as possible. If you only reported the back pain, for example, it could end up being diagnosed as a soft tissue matter; but the knee (a complicated musculoskeletal structure) may end up manifesting a more severe injury that can only be healed with surgery. If you forgot to immediately report the knee pain, you may inadvertently have undermined the majority of money damages that your personal injury lawyer could have recovered for you.

Seek treatment right away, report all of your pain and symptoms to the first nurse or doctor you see, and if possible make sure they note down every aspect of your report. Call us right after you get medical help and if you can’t meet with us we’ll come to you at home or wherever you are recuperating. Call us across BC toll free at 1-877-602-9900.

 



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