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Won v. ICBC: Small Claims Tribunal Rejects Claim “Other Driver” Responsible for Intersection Collision*

Anytime there is an auto accident in B.C., you can rest assured that ICBC will be involved. ICBC adjusters are generally responsible for making the initial determination of which driver, if any, was liable for the accident. Even when, as is often the case, all of the drivers involved are insured by ICBC, the adjuster still has a duty to act in “good faith.” In other words, the adjuster must conduct the investigation into the accident fairly and impartially. However, as a B.C. Supreme Court judge noted in a 2012 decision, ICBC adjusters are “not expected to investigate a claim with the skill and forensic proficiency of a detective.”

ICBC Subject to Claims for Deductible Reimbursements

To give you some idea of the level of proficiency an adjuster should use, here is a more recent decision from the BC. Civil Resolution Tribunal (CRT), which handles many small claims arising from car accidents.

This case, Won v. ICBC, involved an accident that occurred in November 2018 at the intersection of Miller Street and Kingsway in Vancouver. The applicant was driving his vehicle northbound on Miller. She was struck at the intersection by another vehicle that had been driving westbound on Kingsway. The applicant maintained the other driver–and by extension, the owner of the other car–were 100% responsible for the accident.

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ICBC disagreed. Its adjusters determined the applicant’s actions caused the accident. As a result, ICBC required the applicant to pay a $500 deductible. This prompted the applicant to file her claim with the CRT, alleging ICBC “breached its statutory obligations in investigating the accident and assigning fault” and demanding reimbursement of the $500. ICBC objected to the lawsuit, arguing it was “not a proper party to the claim” and that in any event, its assignment of fault was proper.

Andrea Ritchie, Vice Chair of the CRT, heard the case based solely on the written evidence presented by the parties, which is a common practice in CRT disputes. On July 12, 2019, Ritchie issued her decision. At the outset, Ritchie disagreed with ICBC’s statement it was not a “proper party” to the case. Given the applicant was seeking reimbursement of money she paid to ICBC for the deductible–as opposed to damages from the other driver–ICBC was a “properly named party.”

That said, Ritchie still dismissed the applicant’s case. She noted the burden of proof was on the applicant to show ICBC breached its legal duty to properly investigate the accident and assign fault. Here, the applicant said ICBC breached that duty by assigning fault to her rather than the other driver.

Essentially, this was a she-said/he-said. The applicant said the other driver “entered the intersection” of Miller Street and Kingsway “when it was unsafe to do so.” Conversely, the other driver said it was the applicant “who entered the intersection when he had the right of way.” There were no other witnesses to the accident, and no police report was taken.

Ritchie said she could not find any fault with how ICBC conducted the investigation itself. Aside from the applicant’s “vague assertion that ICBC did not base its assessment on the evidence,” there was no contrary evidence to show what the adjusters should have done differently in making its assessment. Nevertheless, Ritchie is authorized by law to reweigh the evidence and make her own determination as to who was at-fault for the accident regardless of the ICBC adjusters’ assessments.

A She-Said/He-Said Case

Ultimately, Ritchie reached the same conclusions on liability as ICBC. She started by noting the facts that were not disputed by either the applicant or the other driver. The applicant was stopped at a stop sign on the northbound side of Miller Street. The other driver was stopped at a red pedestrian-controlled light on the westbound side of Kingdway. Just prior to the collision, the other driver was the first vehicle stopped at the red light in the middle lane of Kingsway, which is a three-lane road on each side.

Here is where each side’s stories diverge. According to the applicant, she saw the Kingsway traffic light was red and assumed it was safe for her to cross the intersection. The other vehicle was blocked by a third vehicle, however, and she did not see the other vehicle in the intersection “until it was too late.” For his part, the other driver told ICBC that he waited until the light turned green before entering the intersection–and as he was about halfway through, the applicant’s vehicle “came across the intersection from Miller Street and the two vehicles collided.” The applicant replied that she had “already crossed nearly 4 of the 6 lanes of travel on Kingsway by the time the accident happened,” which gave her the right-of-way as the “dominant driver.”

A Driver’s to Avoid “Immediate Hazards”

Under the B.C. Motor Vehicle Act, a driver “entering a through highway from a stop sign,” such as the applicant in this case did, is required to yield the right-of-way to traffic that has either already entered the intersection or is close enough to the intersection so as to create an “immediate hazard.” In this context, Vice Chair Ritchie noted, an immediate hazard exists when another vehicle is “in a position and traveling at a speed where a reasonable driver would be able to see it and assess the risk it posed.” The driver at the stop sign must make this assessment “at the moment” she “begins to enter the intersection.”

By this standard, Ritchie said, the applicant was clearly at-fault. The other driver was considered “dominant” in this scenario as he was on the through highway. The applicant had the legal responsibility to yield. And even if the other driver was not an “immediate hazard” before the applicant entered the intersection, he definitely was as she continued through it. Ritchie said the law required the applicant “to keep a continuous lookout as she crossed the intersection.”

Contact Preszler Injury Lawyers Today if You Need Advice Following a B.C. Car Accident

Even when you think you know who was responsible for your auto accident, a judge or tribunal might not see things the same way. That is why you need to work with an experienced Vancouver personal injury lawyer who can assist you in investigating the circumstances surrounding your accident. Contact Preszler Injury Lawyers today to schedule a free consultation with one of our car accident lawyers today.



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