This series, by Pushor Mitchell personal Injury lawyer Paul Mitchell Q.C,.will explain the Top Ten mistakes to avoid with your ICBC claim. The article will give tips on how to ensure you do not make serious mistakes that could be fatal to your claim. For 10 issues of Legal Alert, Paul will focus on one mistake you should avoid, and what you should do instead to ensure your claim is not prejudiced.
Mistake # 8) Failing to have the vehicles and accident site immediately investigated by an accident reconstruction engineer
In more serious claims, and where liability may be in dispute (who is at fault for the accident), it is imperative you have all the vehicles involved in the accident, and the accident scene, examined by a qualified accident reconstruction engineer IMMEDIATELY. Accident reconstruction engineers are certified engineers with a specialty on investigating accidents to help determine who was at fault in the accident
Critical evidence from the vehicles and accident scene can disappear if it is not obtained immediately after the accident.
ICBC has been known to crush the vehicles involved very quickly.
The crucial evidence that may be lost includes;
a) skid marks and debris left at the accident scene.
These may disappear in days or weeks. It is imperative the expert review the scene as soon as possible, to photo and measure skid marks, and examine other marks on the pavement that may show the point of impact. The expert can analyze and measure the length of the skid mark to estimate the pre-impact speeds of vehicles, and the direction each vehicle was travelling, by examining the length and direction of the skid, the coefficient of friction of the road surface, the weight of the vehicles, and the type of tire. I was involved with one case years ago where the parents of a severely injured son came to see me about no fault benefits. Their son was severely brain injured in an accident the police and ICBC said was all his fault. He was so severely brain injured he could not speak, and had no memory of the accident.The collision was in the other car’s lane, on a curve, so everyone, including the police and ICBC, told them it was entirely his fault. We retained an engineer immediately to check out the scene. The engineer found very faint skid marks, going from our clients own lane into the opposing lane just before impact. We eventually proved that the other driver was cutting the corner as he came around the corner, into our clients lane, which caused our client to have to swerve into the other lane in an attempt to avoid the collision. Unfortunately, the other car swerved back into it’s own lane at exactly the same time, and the collision was a violent head on in the other lane. We eventually settled that case for a substantial sum. Had the scene examination by our engineer been left for another few weeks, the skid marks would have disappeared. And so would our client’s case.
Skid marks can show vehicle speed, and point of impact. Crucial issues in just about every case.
b) the amount of body crush of each vehicle.
Accident reconstruction engineers use sophisticated accident reconstruction software programs to estimate the speed of vehicles on impact They analyze the amount of body crush the vehicles sustained.The software program takes into account the crush co-efficient of each vehicle, their relative weights, the amount of crush, location of crush on vehicle etc, and determines each of the vehicles likely speed on impact.This may be crucial if you want to prove the other party was speeding, or that you were not.
If the cars are crushed it is very difficult to obtain this evidence just from photographs.
c) the vehicle’s "black box".
All newer vehicles have an "event data recorder" (EDR), commonly called a "black box", similar to the ones airplanes use. These computer modules retain critical vehicle evidence prior to impact that can be downloaded after the accident. Many of the black boxes record vehicle speed, whether the brakes were deployed, what gear the car was in, and whether the seatbelts were being used by each occupant.
If the car is crushed before the engineer can access the black box, evidence critical to the success of your case will be lost.
The data from a black box can often make or break your case. Seatbelts can sometimes malfunction, and even though they were being used, may not have worked properly.
If you are found not to be wearing a seatbelt, and your injuries could have been reduced by wearing a seatbelt, your claim could be reduced by up to 40% for "contributory negligence" (your conduct contributed to your injury).
If ICBC alleges you were not wearing your seatbelt, and you can prove by the black box you were, you can avoid this issue.
Similarly, vehicle speed and brake deployment can be determined exactly with the black box, often for up to 5 to 10 seconds before impact.
If the black box is crushed, you may have an uphill and very difficult battle on your hands on these issues.
d) seatbelt evidence.
Where seatbelt usage is in issue, if there is no black box, the engineer can examine the seatbelt, and determine whether it was being worn on impact by examining the microfibers of the belt to see if there is evidence of "loading" or wear. This will often determine the likelihood of whether the seatbelt was being worn or not. In serious injuries where the client has no memory, this evidence is crucial. If the car is crushed, this evidence is gone.
e) DNA evidence.
Many cases involve an analysis of who was actually driving the vehicle. I have been involved in many cases where the occupants are seriously injured, and they have been thrown from the vehicle. There is no clear evidence who was driving. If there is DNA left on cars interior(steering wheel, door, window, pillar etc) this can be examined to determine who was sitting where on impact. If the car is crushed, this evidence is gone.
f) other evidence left in car
If the car is crushed, other evidence left in the car that can help determine fault, such as alcohol stains, beer cans, and microscopic evidence such as fibers etc, will be gone.
g) maintenance of vehicle issues
Often a vehicle’s maintenance issues are relevant, such as quality of brakes, tires, signal lights, headlights etc. In cases involving losing control on wet or snowy/icy surfaces, the depth of tire tread is an issue, and may help determine fault of the owner. Similarly where braking is involved, the quality of the car’s brakes may be brought into question, along with other maintenance issues. If the car is crushed, this crucial evidence is gone.
h) product liability issues
In serious claims, where the insurance limits of the car at fault may not be enough to cover the amount of damages, the lawyer will want to consider whether any vehicle design or manufacturing defects contributed to the injury. Product liability issues include seatbelt failure, seatbelt design, defective tires, brake malfunction, negligent manufacture of components, steering malfunction, rood crush, side crush, roll-over propensity, seat failure, motorcycle component failure etc. If the vehicle is crushed before an engineer can examine these issues, there is little hope of success. You would then be left with the limits of the defendant’s car insurance, which can be sometimes be as little as $200,000.
Not very much for a serious or catastrophic case.
So make sure you retain an accident reconstruction engineer immediately after the accident, or have a lawyer do this for you on your behalf.
Don’t make a mistake.
Make your case.
Paul Mitchell, Q.C. has extensive experience with brain injury, spinal injury, death claims, and other catastrophic injury claims, as well as medical negligence claims.
He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company..
For more information on this article, or for a confidential discussion of your claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or at [email protected]
