ICBC Liability Issues
Someone who has been injured in a motor vehicle accident in BC may be eligible to apply for certain benefits whether the accident was their fault or not. These “no-fault” benefits cover things like medical and rehabilitation costs, lost wages and compensation for the inability to do housework.
If you have access to other benefits including employment insurance or a private disability plan through your employer, you are required to apply for these benefits first and ICBC is entitled to subtract these amounts from the accident benefits it pays you.
However, these “no-fault” benefits are usually the smallest part of your total compensation. Most of your compensation will come from the insurance company for the driver who caused the accident – the “at-fault” driver. To determine personal injury damages the first step is the assessment of fault (or liability) for the accident.
You are entitled to compensation (monetary damages) for your injury to the degree you are not at-fault. For example, if the other driver is 100% responsible for causing the accident, then you are entitled to receive 100% of your losses from the at-fault driver’s insurance plan. However, if you were 25% to blame for the accident, then your entitlement is reduced to 75% of your losses.
When two or more vehicles are involved in a motor vehicle accident and there is a dispute about who caused the accident (a liability dispute), ICBC will, in some cases, assign only one adjuster to investigate and assess responsibility for both drivers in the crash. However, whether it’s 2 adjusters making the assessment or only one, you have no guarantee that the adjusters will investigate fully or even interview witnesses before they make a decision about liability. And, in cases where there are passengers but no witnesses, the adjusters will not usually put much weight on a passenger’s evidence unless it helps the driver of the other vehicle.
Your safe driver's discount will be affected if you are found more than 25% at-fault for the accident, but more significantly shared liability can have a huge impact on an personal injury claim for damages because your damages award will be reduced by the percentage you are found to be “at-fault” for the accident.
The good news is that ICBC’s decisions about liability are not binding on you unless you choose to accept them. If you disagree, you can challenge the decision but you have the onus of proving the decision is wrong – if you don’t succeed, ICBC’s determination will stand.
There are two options for challenging an ICBC liability determination. The first is via an ICBC internal review. The second is by commencing a lawsuit against the other drivers (but not ICBC) in Small Claims or Supreme Court for a determination on liability. If you go this route, you will almost certainly need a lawyer because ICBC will appoint a lawyer to represent the other driver(s) you are suing. Often, it is not necessary to commence a lawsuit in the event that your lawyer is able to bring forth the necessary evidence to convince ICBC to adjust their view of liability.