The BC Supreme Court recently released its decision in Taylor v. Brar, a case arising from a March 2022 collision in which Thomas Taylor was driving through a Coquitlam intersection with a green light.

At the same time, Malinder Brar drove his truck through a red light and struck the driver’s side of Mr. Taylor’s vehicle. The collision was violent, and Mr. Taylor spent 18 days in hospital, including nine days in intensive care.

Mr. Brar backed his truck away from the wreck and left the scene.

He was later charged with failing to stop at the scene of an accident causing bodily harm and impaired driving causing bodily harm. He pleaded guilty to failing to stop and received an 18-month conditional sentence. In the later civil trial, the judge found that Mr. Brar had been impaired by alcohol and that his impairment caused the collision.

What Compensation Is Available for a Serious Car Accident Injury in BC?

In British Columbia, compensation for a serious car accident is determined on a case-by-case basis.

In this case, the Court found that Mr. Taylor suffered a moderate-to-severe traumatic brain injury with the judge finding “He is a changed man and will realistically never return to his former self.” Part of his brain had been permanently damaged. As the judge put it in plain terms, “part of his brain had died and would not grow back.”

Before the collision, Mr. Taylor had an active working and social life. He operated a personal concierge business, arranging tickets, travel, events and other experiences for clients. He also performed private-investigation-related work. Both types of work depended on his memory, organization, communication skills and ability to deal with people.

Mr. Taylor now struggles with memory, concentration, headaches, fatigue, pain and difficulty organizing even ordinary tasks. His personality changed. His son moved in with him and became his caregiver. Although Mr. Taylor can still drive, wash a vehicle and do some other activities on a good day, the Court found that he can no longer work or operate a business in any meaningful way.

In the end, the Court awarded him $350,000. While that amount sounds significant, it remains the total compensation for the rest of his life and will not cover all of his losses.

How Does ICBC No-Fault Insurance Affect Car Accident Claims in BC?

Before May 1, 2021, when ICBC’s Enhanced Care system came into effect and BC moved to a no-fault insurance system, a person seriously injured by a negligent driver could sue that driver and ask the court to assess the full extent of their losses.

That could include compensation for pain and suffering, lost income, diminished future earning capacity, future care and other financial losses.

BC’s Enhanced Care system changed that, and in my opinion, not for the better.

Under the new system, ICBC pays benefits for treatment, rehabilitation, income loss and personal care, but those benefits are limited by the rules and formulas set by the legislation. An injured person generally cannot sue the driver who caused the collision for the difference between the ICBC limits and the actual losses, even where the other driver was clearly at fault and the injuries are severe and permanent.

In this case, a narrow exception in the new rules allowed Mr. Taylor to sue – Mr. Brar was convicted of failing to stop at the scene of an accident causing bodily harm.

However, even then, Mr. Taylor could only claim compensation for his pain, suffering and loss of enjoyment of life. He could not ask the Court to compensate him for his lost income, his permanent inability to work or the cost of his future care.

Can You Sue an At-Fault Driver After a Car Accident in BC?

Under the former system, Mr. Taylor could have asked the Court to compensate him for his past income loss, his permanent inability to earn income in the future, and the cost of his long-term treatment and care. He would still have had to prove each of those losses with evidence, but the Court could have assessed and awarded damages for them.

Under Enhanced Care, the Court cannot award those damages. Mr. Taylor must instead rely on the benefits available through ICBC for income replacement, treatment and care. Those benefits are governed by rules and formulas that can substantially reduce the compensation available compared with the former system. They are not comparable to an individualized court award that accounts for the full effect the collision will have on his life

The $350,000 award does not represent the full value of everything the collision took from Mr. Taylor. It represents the limited compensation the Government of BC has decided is available for his pain, suffering and loss of enjoyment of life.

What Happens If You Are Seriously Injured but Cannot Sue the At-Fault Driver?

Getting a judgment does not guarantee payment: you can’t get blood from a stone.

Under the former system, an injured person would sue the at-fault driver, but ICBC would generally defend the claim and pay any settlement or judgment up to the available insurance limits (often in the millions). The injured person was not ordinarily left trying to collect directly from the driver.

The exceptions under the new system work differently. Mr. Taylor was only permitted to sue because Mr. Brar was convicted of a prescribed criminal driving offence. However, the same serious conduct that preserves the right to sue may create insurance coverage problems. The injured person may therefore obtain a judgment but be left to collect it directly from the defendant.

Collection can take considerable time and legal expense, further reducing the injured person’s recovery, and ultimately depends on whether the defendant has assets available to satisfy the judgment.

As the saying goes, you cannot get blood from a stone. Even the small group of people who remain entitled to sue under BC’s no-fault system may win their case without ever collecting the full award.

Frequently Asked Questions About ICBC No-Fault Insurance in BC

Can You Still Sue an At-Fault Driver in BC?

Generally, no. BC’s Enhanced Care system came into effect on May 1, 2021, and significantly restricted the ability of people injured in motor vehicle collisions to sue the driver responsible for the crash. There are limited exceptions under the new rules.

What Compensation Does ICBC Pay After a Car Accident in BC?

Under Enhanced Care, ICBC provides benefits for treatment, rehabilitation, income loss, and personal care. The amount and duration of those benefits are governed by the legislation and applicable rules and formulas.

Can You Claim Lost Income After a Serious Car Accident in BC?

ICBC’s Enhanced Care system provides income replacement benefits to people injured in crashes. However, the rules governing those benefits differ from the former system, under which an injured person could seek compensation for past and future income loss through a civil claim.

Questions About an ICBC Claim or a Serious Car Accident Injury?

Kyle J. Ramsey is a lawyer with Pushor Mitchell LLP in Kelowna, British Columbia. He assists clients with personal injury claims, including claims involving serious injuries arising from motor vehicle accidents.

If you have been seriously injured in a car accident and have questions about your ICBC benefits, your rights, or whether an exception to BC’s no-fault system may apply to your circumstances, contact Kyle at 250-869-1259 or ramsey@pushormitchell.com.