Being A Passenger Injured In A Car Accident
There are a few things you ought to know about pursuing a legal action in tort (i.e. a lawsuit against another person for injuries resulting from their negligence) against an at-fault driver.
Does It Matter Who I Sue?
You may be concerned about who is the other party in the lawsuit. If it is clear that the driver of the vehicle you were riding in is at fault, you will need to bring the action against that person (and sometimes both drivers, if liability is uncertain) or both partially at fault.
If this person is a family member or friend, it can be uncomfortable to bring an action against him or her. However, every vehicle owner is covered by an ICBC policy that will provide a legal defence in the event that the owner, or any person driving the owner’s vehicle, is sued. While being sued will drive up a person’s ICBC premiums, the vehicle driver and owner will have little role in the litigation, other than answering questions under oath. They will not bear legal costs, unless the claim is so large that it surpasses the limits under their ICBC policy and are forced to seek independent legal advice — this is rare. You should not feel guilty about commencing a legal claim where your losses are significant.
What If The At-fault Party Drove Without The Owner’s Permission?
You may wonder what happens if the at-fault driver did not have permission to use the vehicle that he or she was driving. If a vehicle was stolen or the driver was not permitted to drive the vehicle, the owner’s ICBC policy may not cover the driver in a lawsuit. However, in such a case, ICBC is responsible for uninsured motorists available through a special fund created by ICBC. In such a case, you can seek damages from the ICBC fund for up to $200,000, once liability is proven against the uninsured driver.
However, if you are a passenger in a vehicle that you know has been stolen or where you know that the driver does not have the owner’s permission to operate the vehicle, the ICBC fund will be unavailable. In Schoenhalz v. ICBC, 2016 BCSC 661 (CanLII), for example, ICBC was ordered to pay out of its uninsured motorist fund where a 17-year old girl was injured as the passenger in a vehicle driven by a 15-year old unlicensed driver. In that case, given her age and lack of awareness, the court refused to find that the 17-year old “knew” that the driver was not permitted to operate the vehicle. However, this can be seen as a generous decision by the court.
Does My Age Have Any Bearing On My Ability To Commence A Tort Claim?
You may wonder whether your age has any bearing on your potential lawsuit. If you are seriously injured and unable to work, a younger person may have a larger claim for damages, since there is potential for greater future income loss. Other than this, age has little bearing. If an injured passenger is a minor (under 18), he or she will need a parent or other trusted person to bring the lawsuit on his or her behalf. This is called acting as a “litigation guardian.”
Is There Any Situation Where I Would Not Benefit From A Tort Case?
Since you are the injured passenger, rather than a driver, chances are that another party - whether the driver of your vehicle, or the driver of the other vehicle — is legally at fault. As such, a settlement will often be reached as long as you can show that you have been injured as a result of the accident, to an extent that has caused you to incur measurable losses, and where there is a genuine case of pain and suffering.
If you were partially responsible to some extent for your own injuries, you may still receive an award for damages, but it may be reduced by some percentage to reflect your “contributory negligence.” The driver at fault for the accident will still generally be held primarily liable, however. The specific apportionment of liability will vary from case to case.
In Telford v. Hogan, 2014 BCSC 1925 (CanLII), the defendant driver of the vehicle, Ms. Hogan, who was intoxicated, was found 75 percent responsible for causation of the accident. The injured passenger plaintiff, Ms. Telford, was held 25 percent contributorily negligent in causing the accident due to grabbing the steering wheel of the vehicle while intoxicated. Ms. Telford had also failed to wear a seatbelt, and voluntarily rode with an impaired driver, and so she was found 35 percent contributorily negligent in causing her own injuries.
SHOULD I SEE A PERSONAL INJURY LAWYER IN VANCOUVER?
As above, if you are a passenger in an accident, there will be at least one at-fault party to claim against. If your injuries are such that they affected your performance at work or school or you ability to work or study, prevented you from engaging in activities that you previously enjoyed, or affected your enjoyment of life, speak to a personal injury lawyer about your potential legal claim.
Contact Kenneth Cristall Law Corporation – Car Accident Lawyers for Vancouver, Burnaby, Surrey & Langley
You owe it to yourself to seek compensation when you have suffered a loss in a car accident. Our law firm serving Vancouver, Burnaby, Surrey, Langley, Coquitlam, Richmond and New Westminster has experienced personal injury lawyers for your case. We can arrange your free consultation when you call us at 604-654-2250.