Reasonable Doubt: When the car accident is your fault

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      You’ve been in a motor vehicle accident. And it was probably your fault. What happens now?

      Don’t flee the scene. You could be charged with a criminal offence.

      If people are injured, then call an ambulance. If there is serious property damage, then call the police.

      Make sure that you exchange information with the other drivers. Get their names, phone numbers, addresses, driver's licence numbers, licence plate numbers, and basic insurance information. If there are witnesses, then get their contact information.

      You can apologize to the other driver. In British Columbia, the Apology Act states that your apology cannot be used in court to show that you were responsible for the accident.

      You should report the accident to ICBC relatively soon afterwards. You can telephone it in, attend a local claim centre, or have your lawyer report it on your behalf. An ICBC representative will take a statement from you or your lawyer on how the accident happened. The representative will probably also want you to bring your car in to have the damage recorded.

      If a lawsuit arises from your motor vehicle accident, your statement will likely form a part of it. It is important to make sure that your statement is accurate.

      ICBC may investigate the accident and make a determination regarding who was at fault. They could find you partially, not at all, or completely responsible for the accident. ICBC will tell you when they have decided who is responsible for the accident once they complete their investigation.

      Do not talk to anyone else about your accident. If someone is injured in the accident, then their lawyer could send a private investigator to interview you. Similar to when someone is charged with a criminal offence, it is not in your best interests to talk to them.

      ICBC’s determination of fault may have an impact on your insurance premiums. Ask your ICBC representative.

      If you disagree with ICBC’s liability determination, then you have three options.

      First, you can dispute it through an independent proceeding offered by ICBC that costs $50. An independent arbiter will look at the evidence and come to her own conclusion on who was responsible for the accident. If the conclusion works in your favour, then ICBC will refund your $50.

      Second, you can start a small claims or Supreme Court lawsuit. The court’s decision will override ICBC’s liability determination.

      If you choose to start a lawsuit in small claims court at the Vancouver registry, then you will probably attend a simplified, one-hour trial at night court.

      Lastly, you can do nothing and accept the determination. It may not be worth your time and effort to fight ICBC’s decision.

      If you are having trouble figuring out what to do, then contact a lawyer.

      If someone is hurt in the accident, then they might sue you. You will likely not find out about the lawsuit until at least a year after the accident. Most personal injury lawyers wait at least a year before filing a lawsuit so that they have time to learn about the injured person’s injuries.

      Getting sued can be a stressful and confusing experience. Don’t panic. So long as your insurance is in order, your insurer will likely step into the lawsuit for you and handle the defence.

      Your insurer will generally hire a lawyer to defend you in the lawsuit. If ICBC is your insurer, then that lawyer will work with a team of ICBC insurance adjusters to make key decisions on how to investigate and defend you. ICBC retains full discretion on how they defend your lawsuit or settle your lawsuit.

      Your involvement in the lawsuit will probably be minimal. You may have to attend an examination for discovery, which is a recorded interview where the injured person’s lawyer has a chance to ask you questions about the accident. Your ICBC lawyer will prepare you for the examination and attend with you.

      You might also need to attend trial if the case does not settle, though trials are less commonplace than in the past.

      The person suing you may have appeared fine at the accident scene. It is not uncommon for people to seem fine at first and then start having neck and back pain later that day or the next day. So temper your anger caused by the idea that someone is suing you in order to cheat the system. ICBC is able to conduct investigations to guard against fraudulent lawsuits.

      Be patient. Lawsuits generally take one to two years to either settle or go to trial. Most likely, you will get a letter in the mail several months after the examination for discovery telling you that the lawsuit was settled.

      The settlement amount, or judgment amount in the case of a trial, comes from your “third party liability coverage”. When you purchase your third party liability coverage, you have the choice of paying for $200,000 to $5 million coverage. 

      The amount of third party liability coverage that you choose is important. If the people injured in your accident are awarded damages greater than your third party liability coverage, then they have the choice to come after you personally for the excess amounts. It is important to choose wisely when deciding how much third party liability coverage you want. Not getting enough could mean losing your house or being indebted to someone for a lot of money.

      If there is a reasonable risk that the damages in your lawsuit could be more than your third party liability coverage, then your ICBC lawyer will tell you and recommend that you seek advice from another lawyer on what to do. Generally speaking, no news is good news.

      Joseph Fearon is a civil litigation lawyer at Preszler Law Firm practising in the areas of personal injury and commercial litigation. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

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