Archive for the ‘Information on How to Make a Claim Against ICBC’ Category

Without Prejudice – What is the effect of this term?

In negotiations letters and other documents are often exchanged marked “without prejudice.  What does the term “without prejudice” mean, and what is the term’s effect in legal matters in British Columbia. This blog considers this.

The law is evolving and changing, and the exact application of this term or any other legal concept should be reviewed by a lawyer before it is applied to a particular circumstance.

A review of the definition of the term can be found this legal dictionary. In British Columbia, the term was reviewed in the case of Coombs v. LeBlond Estate.

In BC, as in most jurisdictions, the purpose of without prejudice communications, whether they be by discussions, in writing or in some other form, is to allow open discussion of settlement negotiations. If the matter proceeds to a hearing or adjudication, one or both parties don’t want the someone to say “I told the other side this is what they should agree to and they turned it down”.

Very often, discussions or letters marked “without prejudice” do not contain a settlement proposal.   Even if such a communication is marked “without prejudice”, it still may be admissible in court or another forum against the party who wrote it, or had their lawyer or representative write it.

Sometimes discussions or letters not marked “without prejudice” may be seen as seen as privileged and not usable if it contains terms of settlement.

After reviewing the relevant cases, the judge In the Coombs case, at paragraph 23, finds that in order for a communication to be without prejudice, such that it cannot be used in court or against the parties, the communication must have the following two conditions:

1 – a dispute or negotiation between two or more parties; and,
2 – terms of settlement offered.

With respect to the first term, some dispute must exist. There does not need to be court proceedings, but there should be grounds to commence a court proceeding.

With respect to the second term, there must be some terms of settlement offered. The other content of the communication can be the basis of the terms, or an explanation as to who the facts are seen or perceived.

If terms of settlement are missing from the communication, then it might be possible to use the communication against or for one of the parties.

Single Car Collisions

My last blog spoke about animals on the road. In this blog, I look at No Fault Collisions in a more general way. The message is similar.

These are situations where an animal or ice and snow cause the collision. It may also occur where someone driving suffers an unexpected medical event such as an epileptic seizure or heart attack.

Very often the situation I get is someone comes in who was a passenger in a single car collision. They went to ICBC. ICBC asked how the accident happened. They say it was no one’s fault, just bad road conditions. Often they don’t want to say anything that would get the driver “in trouble”.

The reason there is insurance is to cover the driver if the driver did something wrong.

Very often someone goes off the road with no one at fault – there was nothing they could do. If there is no fault, then there is no claim. ICBC adjusters sometimes call this as a no-fault accident.

There is also a legal doctrine known as Inevitable Accident. This is claimed where a collision is by an external force – like an animal unexpectedly jumping out on the road in front of the vehicle with no opportunity to avoid the collision or if the driver is affected by something internal such as a medical condition.

So, if you have been injured in a single car collision and someone else was driving, it is important that you consider whether or not the driver did something that contributed to the collision. To put it another way, was there something the driver could have done to avoid the collision such as drive slower, breaking sooner or paying better attention to his driving. The standard of care necessary is not driving under the speed limit, but rather driving at the speed appropriate for the road conditions.

If you’re in a single car collision, or one that may have been caused by someone with a medical condition, it may be worthwhile to consult with a lawyer prior to making ICBC or an insurance company. You want to make sure any statement you give is clear and accurate and cannot be wrongly interpreted against you.

What if a Friend or Family Member caused the Collision?

What if a family member or a friend caused a collision where I was injured and I don’t want to claim against them.

The first thing to keep in mind is it isn’t personal. Insurance is there to cover losses caused by people’s mistakes. As long as there is valid insurance coverage, a claim can be made and the insurance company can pay.

The claim may change what the at-fault person pays for insurance. Unless the person breached the policy by doing something wrong such as driving while impaired, he won’t have to pay anything.

Also, if the person doesn’t have enough insurance, he will have to pay for any amount over the insurance they have. For example, if a person has third party liability insurance of $200,000 (the minimum in BC), and a court awards $300,000 because of the injuries suffered, the insurance company will pay out $200,000 and the person who caused the collision will have to pay the additional $100,000.

I always suggest people carry at least three million dollars worth of third party liability insurance as there are many claims that go over a million dollars.