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Car Accident Fault Determination

Every driver can expect to have at least one car accident in his or her lifetime. Typically an accident comes unexpectedly, though there is a higher likelihood of an accident when your stress level is high. When you have an accident, there are many things that may be going through your mind, such as how the accident might impact you in the future. A key aspect of your accident is the determination of fault, which affects your ability to sue for personal injury damages and car insurance premiums.

The police need to be called if there are injuries or if the property damage exceeds $1,000 but they do not determine the fault in an accident for the insurance company. The police will make a report and may issue a ticket or make an arrest as applicable. The police report written is just one of the pieces of evidence used in the crash investigation.

At the Car Accident Scene

When an accident occurs, there may be some confusion and, people may be quick to blame each other. It’s important not to admit fault or discuss who could be at fault at the accident scene. It’s better to simply record the facts for the appropriate person to investigate, including taking photos and obtaining the names and contact information of witnesses.

If you are injured too significantly to collect information, it’s best that a friend or family member does this for you as soon as possible, even if it means just going back to the accident scene to take photos of the road, what’s around there and weather conditions later that day or the next day. Further, if the other driver is difficult or accusatory, it’s best not to engage with them but simply to exchange information and have the insurance company deal with it instead.

How ICBC Determines Fault

After a car accident, ICBC will begin their investigation. They will take a statement from the drivers and any passengers and witnesses and look at any available photographs of the accident scene and automobile damage. ICBC will consider the rules of the road there and any posted signs where the accident took place but there is no assurance that adjusters will investigate fully or even interview witnesses before deciding about liability. Further, there is no assurance that adjusters will put any weight on a passenger’s evidence unless it helps the driver of the other vehicle. It is best to have your lawyer prepare your statement.

Once the information has been compiled, ICBC will make a determination as to how the accident happened and what the cause appears to have been. They will determine who is at fault based on rules used in previous accidents. Where there is a dispute about the extent each party was responsible and two or more motor vehicles were involved, ICBC will open two files and assign a different adjuster to each driver. The adjusters will negotiate with each other on behalf of the drivers to determine how liability should be split (called apportionment of liability). Because ICBC makes its own decision about who is liable for an accident, it is important to have your lawyer in contact with ICBC; your lawyer can try to put pressure on ICBC to make a fair assessment and compensation settlement for you.

Fault Percentages and their Impact

Fault for an accident can lie with one or more drivers. If you are found to be more than 25% at-fault for the accident, your ICBC safe driver’s discount will also be affected. Insurance premiums will also rise to the extent that each party was found at fault more than 25%.

Fault determination is critical in a personal injury case as it affects the extent of personal injury damage awards. Your financial compensation for the injuries sustained is awarded according to the fault of the other party, to the extent that you are not liable for the accident. For example, if you are found to be 50 percent at fault for an accident, you can only obtain 50 percent of the damages claim that could have been awarded if you were not at fault for the accident at all. If the accident was not your fault or not entirely your fault, your monetary damages will be in accordance with various “heads of damages,” such as pain and suffering, lost future wages, out of pocket losses, medical care and rehabilitation. Damages claims are paid by the insurance company for the driver, usually as a result of a settlement and, in rare occasions, as a result of a trial. Usually, the at-fault compensation is the significant portion of funds received from a personal injury accident.

Challenging ICBC’s Fault Determination

When ICBC makes a decision about liability the decision is not binding on you unless you choose to accept it. Again, this is where having a lawyer is beneficial. If you disagree with ICBC’s decision, you can challenge the decision but the onus of proving the decision is wrong is placed on you and ICBC’s determination will stand if you cannot prove otherwise.

If you wish to challenge an ICBC liability determination, two approaches are available. You may request an ICBC internal review or commence a lawsuit against the other party (but not ICBC) in Small Claims Court or the Supreme Court for a determination on liability. If you choose the option to sue the other party, hiring a lawyer is highly recommended because ICBC will appoint a lawyer to represent the other driver(s) you are suing. Often, your lawyer will bring forth the necessary evidence to convince ICBC to adjust their view of liability, such that it no longer becomes necessary to commence a law suit.

The Importance of Hiring a Lawyer

If you sustain personal injuries from an automobile accident, a Vancouver or Lower Mainland lawyer at Kenneth Cristall can advance and protect your legally interests. We will fight hard to ensure that you are not found to be at fault or are otherwise assigned minimal fault as our lawyers know ICBC policies thoroughly. We can represent you against ICBC and help you to recover the most damages possible for your accident injuries and emotional distress where the other party is fully or partially at fault. We can assess your situation and advise you when we provide your free initial consultation. Call us at Kenneth Cristall Law Corporation at 604-654-2250 or email us at Let us help you today!

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