This ICBC claimant sought compensation for brain injury which he said was caused after he was thrown from his bicycle with no contact with the vehicle. There were several statements given to ICBC both in writing and by email which the court had to consider in determining fault. The issue regarding liability was whether the driver caused the cyclist to fall by failing to yield at the stop sign.
In reviewing these statements the Judge had this to say about the law:
[108] Prior consistent statements are not admissible for the truth of their contents or to conclude the witness is telling the truth…However, they can be used to remove a potential motive to fabricate when assessing credibility. If the prior statement was made before a motive to lie existed, then it can rebut a suggestion that the evidence given by the witness at trial is fabricated…(Owen v. Folster,2018 BCSC 143)
The accident occurred while he was riding his bicycle in Nanaimo, B.C. and a driver turned suddenly causing him to lose control in the agony of the moment. The claimant was riding his bicycle northbound downhill on Extension Road approaching the T-intersection with McKeown Way where he intended to turn left.
The defendant was driving her vehicle eastbound on McKeown and stopped at the stop sign for the intersection with Extension where she intended to turn left. The claimant said that he fell from his bicycle and sustained a brain injury when the vehicle drove onto Extension after leaving the stop sign.
The claimant reported the accident to ICBC four months after the accident. Before then, he did not realize that he may have an ICBC claim for an accident where he was a cyclist. ICBC asked the claimant for an email statement, which he provided. It was typed by his wife Valerie using his words and with his name at the bottom. His wife also testified that driver said words to the effect of, “It was raining hard, it was dark and I didn’t see him.” The claimant`s wife gave the driver the business card for the ICBC adjuster and asked her to call the adjuster.
In her first statement to ICBC the defendant stated:
… I stopped at the stop sign at Extension Road. I am very familiar with this road. Extension is so busy especially in the mornings. You always have to stop and wait for traffic to clear before you can make a turn. I remember being stopped at the stop sign. While I was stopped, I saw a cyclist coming down the hill to my right.
In her second statement to ICBC the driver described her stop at the stop sign with the stop sign “maybe in line with the centre of the front doors”.
Both statements of the defendant to ICBC describe one stop before entering Extension. The statements to ICBC regarding the number of stops are consistent with each other, but inconsistent with her testimony at trial that she stopped twice on McKeown. The explanation offered did not assist in understanding the inconsistency, particularly since the defendant made other handwritten corrections to the second ICBC statement.
The judge found that the defendant stopped once at the stop sign in the approximate position of the second stop beyond the stop sign where she could look both right and left as she described in her statement to ICBC.
The judge found that the negligence of the driver in entering onto Extension as the cyclist was approaching on his bicycle was 100% responsible for the accident.
The court found that the claimant suffered a brain injury and awarded over $1 million as follows:
Pain and Suffering: $210,000
Past Loss of Income: $240,000
Future Loss of Capacity to Earn Income: $370,000
Future Care Costs: $307,000
Out of Pocket Expenses: $54,000
TOTAL: $1,181,000
Posted By Renn A. Holness, B.A. LL.B.