League and Williams Lawyers

Tag: injury lawyer

Acts of Dog & the Law in BC: Risk & Responsibility
Personal Injury & Property Damage – Who Fetches the Bill for Acts of Dog?

What are the legal and financial consequences when a dog injures somebody or causes property damage? What can dog owners do to reduce or avoid those consequences? Those are the questions being answered in this week’s blog on the acts of dog.

It’s important to note that when it comes to legal responsibility for an act of dog or the resulting dog claim, it applies not only to dogs that you own, but also dogs the are under your care or even those dogs that are on your property with your permission. Dog owners can often be sensitive to the criticism of others, not unlike how some are sensitive to criticisms of their children. After all, dogs aren’t just man’s best friend – they are often valued as members of our families.

This blog is not about any specific breed of dog, nor is it about how their owners train or care for them. Any breed of dog can be either completely harmless or dangerous, depending on the circumstances. This blog discusses how the law can hold a person responsible for injury, damage or death caused by a dog, and why having insurance is critical.

3 Ways People are Held Accountable by the Law for Acts of Dog

There are three principle ways that the law holds people responsible for harm caused by a dog:
- General Negligence Law
- Occupiers Liability Law
- Scienter
General Negligence Law

General negligence law requires that if harm to others from the behaviour of the dog is foreseeable, the person whose control the dog is under has a responsibility to prevent the harm. This is true regardless of the ownership of the dog, or the location of the dog. For example, if a person takes a friend’s dog to an on-leash park, and lets the dog off the leash, and the dog knocks an elderly person to the ground, breaking their hip, the person borrowing the dog will likely be responsible for the injuries caused. It wasn’t their dog, it wasn’t their property, but because they had control of the dog at the time, it is their responsibility.

Occupiers Liability Law

The second way that the law holds people legally responsible for the acts of a dog is when the damage occurs on property controlled by you. This is because in BC a person who controls property must take reasonable steps to ensure activities conducted on their property do not pose unreasonable risks to others on their property. For example, a person decides to host a backyard barbecue and invites all of their friends to bring their dogs. It is reasonable to think that some of the dogs won’t get along, but none the less, the person hopes for the best. During the barbecue, a dog fight ensues, and a guest is badly bitten, suffering nerve damage to their dominant hand. They find themselves unable to work as a result. Even though it was not the property owner’s dog that did the damage, because of the property owner’s duty to ensure people are reasonably safe in using the property, the property owner may be held responsible for the injuries.

The Law of Scienter

The last legal basis for liability is based on an old legal maxim called scienter – which is latin for, knowledge of poor behaviour. Scienter means that if the dog has demonstrated a dangerous behaviour previously, and the owner of the dog knew about, the owner may be liable if that behaviour hurts someone. For example, a dog owner is aware their dog likes to chase motorcycles because they have seen the dog chase motorcycles. One day the owner forgets to tie the dog up and it chases another motorcycle and the motorcyclist loses control and is badly injured. The dog owner would likely be entirely at fault for the accident and held responsible for the resulting injuries.

How to reduce the risk of acts of dog?

These are all tragic, but entirely realistic scenarios. Given this, what can a dog owner due to ensure that man’s best friend doesn’t do serious financial damage? First, dog owners should take care to have their dog under a degree of control that is appropriate for the circumstances. Second, dog owners should ensure that they are properly insured for the risk that their dog could cause injury or property damage.

Many people don’t know that their homeowner’s insurance policy includes $1 million in liability insurance. This insurance will cover a person’s costs for a legal defence, as well as any money that is needed to pay for the damages caused by their dog. This is true even if the accident happens when they and the dog are away from the property, such as at the park.

The same is true of renter’s or tenant’s insurance policies, and such insurance often costs around $35 per month. In the last 10 years, approximately 25% of all claims made under homeowner’s and renter’s insurance policies were due to a dog causing injury or property damage. In the last several years, the average value of a dog related insurance claim has been between $35,000 and $50,000. Obviously, no dog owner would want to be responsible for this type of debt. So, being covered by this kind insurance is wise, and can be bought separately if needed.

In closing, dog owners, regardless of the breed, should do the responsible thing by ensuring they’ve reduced the risk by exercising reasonable care and control of their dog and by being appropriately covered by insurance. Rarely does any dog intend to cause any harm, but unfortunately, the intention of a dog matters not when a dog owner is being sued for damages. I hope you found this blog helpful and thank you for reading.

We hope you have learned something from this week’s video blog. Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law. League and Williams serves clients across British Columbia and is headquartered in Victoria, BC. Our expertise is in injury law, estate disputes and marine law. If you are injured and would like a free consultation, contact us via phone at 250-888-0002 or via email at info@leaguelaw.com. We are here to help injured parties get the fair compensation that they are entitled to.
September 21, 2017
Red Flags with Victoria’s Protected Bike Lanes and Green Boxes

Protected Bike Lanes on Pandora Open to Mixed Reviews

On Monday, May 1, 2017 the Pandora St. protected bike lanes officially opened to the public. The intent of this two-lane track that runs from Wharf St. to Cook St. is to separate bike traffic from car traffic and make cycling more efficient and safer. While the intention is honourable, the immediate result has been confusion and many near-misses between motorists, pedestrians and cyclists. Road (and crosswalk) users will have to adapt to significant changes in their usual behavior at intersections along Pandora. However, it should be noted, where this kind of bike lane has been implemented elsewhere, improvements in safety have been realized.

Motorists, Cyclists and Pedestrians Face a Learning Curve

Motorists will no longer be able to make right turns on red lights at intersections, and must stop behind the green bike boxes away from the intersection. Cyclists have to maneuver to enter and exit the bike lanes through “green boxes” that are far from intuitive and involve turning right to go left, and vice versa. The City has had to produce a four-minute video to explain how the protected bike lane works – it is doubtful many cyclists, motorists or pedestrians will absorb the video. The City has stationed employees at the intersections to explain to road users how to navigate the new “facilities” – it is unclear how long these employees will be stationed there as the tourist season progresses. The forecast calls for confusion and flared tempers, and sadly a significant chance of serious injuries as people adjust to this new norm.

No Requirement to Use the Bike Lane Provided

While many motorists are glad to see the dedicated bike lanes, some are not. Even some cyclists ask if they have to use the bike lanes, many of them nervous that motorists and pedestrians won’t know how to behave around the bicycles that enter and leave the green boxes in a bizarre fashion that involves turning their bikes 180 degrees. However, whether people like it or not, the law does not require cyclists to use the protected bike lanes simply because they are available. If a cyclist is injured by a vehicle outside of the protected bike lane, the court will not find the cyclist negligent for not using the bike lane just because it was there, provided the cyclist’s actions were not otherwise the cause of the accident.

If Protected Bike Lanes Prove Hazardous, Can the City be Held Liable?

Importantly, BC courts have said: “a municipality has a duty to maintain roads in a reasonably safe condition. The duty extends to taking reasonable steps to prevent injury to users of the roads caused by hazardous conditions… such as those arising from the design or configuration of the road.” The point to be drawn from the foregoing is that a municipality’s duty extends to maintaining and configuring its roads, such that they are safe for use by someone using ordinary care.

How cyclists are required to navigate Victoria’s new bike lanes, as well as how motorists and pedestrians are expected to behave around them, is now far from ordinary for the typical road user (watch the video and you will see). This means that the City may find that a cyclist, pedestrian or motorist is injured because of a confusing or otherwise unsafe road design that a person exercising ordinary care would not expect, may hold the City responsible for their injuries. Such a claim does not involve ICBC paying for the City’s negligence.

Many people do not know that there is a very short time limit for notifying the City that its design or implementation of the new bike lane has caused someone harm. The BC Local Government Act states that a local government “is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality… within 2 months from the date on which the damage was sustained.” This means that if the City is not notified of an injury within 60 days of the accident, the City will bear no responsibility regardless of how severe the injuries are. Hopefully no injuries arise as tourists and locals learn how to use the new protected bike lanes, but if they are, they should not overlook the requirement to give notice to the City within the 60 days required by the Local Government Act.

Darren Williams is the principal lawyer with League and Williams and leads the personal injury area of practice of the firm. If you or a loved one has been injured in an accident, we would like to help you recover. League and Williams offers free consultations, does not get paid until you do and is focused on ensuring that you recover to your fullest potential. League and Williams is headquartered in Victoria, BC with satellite offices in Duncan, Nanaimo and Campbell River. We may be contacted via email at info@leaguelaw.com or phone at 250-888-0002.

May 3, 2017
ICBC Hit and Run Accident Claims (Video Blog)
ICBC Hit and Run Claims

British Columbia insurance law makes sure that every vehicle licensed in this province carries at least basic coverage of $200,000 in third party liability insurance through ICBC. This basic level of required ICBC coverage means that if someone else injures you with their vehicle, you at least have some certainty that you will at least have access to some insurance funds. Even if the minimum insurance is inadequate for most serious injuries, the driver that injured you will be able to, at least a certain extent, compensate you for things such as your lost wages, medical expenses not covered by the medical services plan (MSP), and for your pain and suffering. To access this coverage, however, you need to know who the other driver was, or at least have enough information so that the vehicle can be found and the appropriate insurance policy identified. But what happens if the driver that hurt you fled the scene of the accident and you can’t identify either the driver or the vehicle?

Some insurance coverage is still available even if your collision was a hit and run. Section 24 of the Insurance (Vehicle) Act still provides basic coverage through ICBC for anyone injured by a vehicle in BC, even if the vehicle or driver can’t actually be identified. This coverage provides up to $200,000, the same amount as the minimum provided by any BC licensed vehicle.

This insurance is last resort, however, and isn’t available if there is other insurance coverage available elsewhere, such as if the vehicle’s owner can be found but not the driver. There are also requirements that you be proactive in attempting to identify the other driver, which usually means making a police report and attempting to find witnesses.

In addition to still not being able to identify the driver after taking reasonable steps, there are two other requirements to access this coverage through ICBC:
1. That the incident leading to the injury must have occurred on a highway in British Columbia, and;
2. That the injury came from the use or operation of a motor vehicle.
A highway in BC has a broader meaning than the usual sense and is broadly defined as most roadways that are meant for public use. Beyond this, it’s not necessary that you have any insurance of your own to access this coverage or for you to prove that the driver that injured you actually had any insurance. This is because hit and run coverage is a matter of public policy intended to ensure those without a way to directly access the insurance of the person that hurt them won’t be left entirely unprotected from the actions of someone who has wronged them twice, first in the collision, and second by leaving the scene.

If you do have your own vehicle insurance, this provincial hit and run coverage also extends to the Yukon, the Northwest Territories, and the United States, provided you can show that another vehicle hit you.

Accessing hit and run coverage can be a technical area of insurance law with some strict time limits in reporting the collision and making a claim. If you find yourself in a situation where you were injured by an unknown driver, you should contact an injury lawyer experienced in making ICBC hit and run claims as soon as possible to make sure that you preserve your rights.

If you have a question about this issue topic or another legal issues, please feel free to contact us for a free legal consultation. We may be reached at our offices at 250-888-0002, or via email at info@leaguelaw.com.
September 20, 2016
Video Blog: Speeding Cyclists and BC Law

School Zones, Speeding Cyclists and BC Law

Last week, a local cyclist was ticketed for speeding in a school zone. The event attracted considerable news attention and a lot of discussion on social media – with many wondering if speeding cyclists are subject to the Motor Vehicle Act. In this week’s blog, we will discuss how BC’s Motor Vehicle Act applies to bicycles and why this might be. Viewers should be warned that some of the images in the above vlog may be disturbing to some viewers.

Despite being call the “Motor” Vehicle Act, section 183 of the BC’s Motor Vehicle Act states:

In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle.

In other words, all of the rights and duties provided to cars, apply to bicycles as well. This applies to speed limits, the manner in which bicycles and vehicles enter and leave roadways, and how they negotiate intersections and interact with each other. In my view, this is a good thing. There is a significant power indifference between motor vehicles and bicycles, and similarly, between bicycles and pedestrians. Speeding cyclists are a road safety hazard.

It may seem obvious that, because of the simple physics of mass times velocity, a vehicle can cause more damage to a cyclist, than a cyclist to a pedestrian, but that comparison bears little comfort for a pedestrian who suffered a brain injury when they are knocked to the ground by a careless cyclist.  In other words, an object traveling at speed does not need to weigh even a fraction of what a vehicle weighs in order to cause significant injury. Section 183 provides for pedestrians the same increase in safety from being injured by cyclists, as it provides cyclists from being injured by motorists.

Lack of Liability Insurance Carried by Cyclists Put Victims at Peril

What many people overlook in this debate is that while every person, including a cyclist or pedestrian, injured by a motor vehicle in BC will have some form of insurance coverage to help pay for medical expenses and wage loss while they are injured, the same is sadly not true of pedestrians injured by speeding cyclists. In other words, ICBC and private automobile insurers will not pay for the medical expenses or wage loss of a pedestrian injured by a cyclist.  It is only if the cyclist has liability insurance through their home or renters insurance that they will have some source of money to help pay for the injured person’s expenses. If that insurance is not available, the cyclist will be personally responsible to pay for the injured person’s expenses. Often, this can mean personal bankruptcy for the cyclist, as many injuries result in hundreds of thousands of dollars in damages. Both the injured pedestrian and the cyclist are the ultimate losers in that scenario.

Imagine for a moment a cyclist speeding though a school zone, colliding with a small child who is crossing the road, leaving the child with a brain injury.  The cyclist would likely have no insurance and the child would be left with minimal resources to pay for medical care and income loss through their life. In short, there is good reason the safety precautions set out in the Motor Vehicle Act apply to bicycles as well as motor vehicles.

Inability to Gauge Speed is No Excuse

In closing, I reviewed one blog in the last few days that questioned whether a cyclist should be ticketed for speeding when bicycles do not have a speedometers and therefore cannot gauge their speed. This raises an interesting issue that we will cover in more detail in a future blog, but for the time being, it will suffice to say that cyclists should always err on the side of caution if they are unable to reasonably judge their speed.

If you have a question about this issue topic or another legal issues, please feel free to contact us for a free legal consultation. We may be reached at our offices at 250-888-0002, or via email at info@leaguelaw.com.

September 13, 2016
Are Waivers (for Accidents) Enforceable in BC? (Video Blog)
This week, I am going to talk about the enforceability of waivers, which are incredibly common and powerful clauses in contracts we all come across almost every day. From getting on a chairlift or a ferris-wheel, to renting a car, a bicycle or piece of garden equipment, or even leaving a jacket at a coat check, waivers are everywhere. Giving up, or waiving, the right to claim for the consequences of someone else’s carelessness is something we all frequently do.

Waivers are Agreements not to Sue

A waiver is a promise not to sue for any injury, death or property damage arising out of the activity, including loss caused by the clear negligence of another person. British Columbia is the most waiver-friendly province in Canada, and Canada likely the most favourable country in the world for enforcing waivers.

Insurance companies like waivers because they reduce the number of claims they have to pay out because waivers reduce the likelihood their insured will be successfully sued. Businesses like waivers because they reduce the cost of their insurance and when a business cannot get liability insurance, a well-drafted and presented waiver offers the opportunity to avoid legal responsibility for the negligence of the business and its employees.

For many people, the idea that they might be badly injured by the obvious negligence of an another person and have no legal recourse to pay for wage loss or medical expenses, can be frightening. And it should be.

Waivers are Enforceable When They Meet Legal Tests

While many waivers are enforceable, they must meet several legal tests. In order for a waiver to be effective in removing someone’s right to sue for another’s negligence, the waiver must meet the following three part test:
- First, the waiver must actually apply to the facts of how the accident occurred;
- Second, the waiver must not be what’s called unconscionable; and
- Third, the waiver must not be against public policy.
Waivers Must Apply to the Facts of the Accident

So, regarding the first part of the test, does the waiver apply to the facts, this means the court must consider whether the terms of the waiver include a description of the risks that caused the person’s injury. This means a waiver can only cover potential risks which were in the mind of the person at the time they signed the release. For example, if you are skiing, it is likely in your mind you might ski off a poorly marked trail and injure yourself, or be injured in an avalanche which could have been prevented.

You would not, however, contemplate being shot by an employee who was carelessly handling a firearm, or being food poisoned by poor practices in the ski lodge. In other words, the cause of the injury that the waivers seek to avoid legal responsibility for, must be reasonably described in the waiver and be generally foreseeable by the parties. Clear language is required if a business operator wishes to release themselves from liability for the negligence of their employees or agents. The courts must also consider whether the participant actually understood what they signed.

Generally, by signing a waiver, it is presumed that the participant has read and understood it. The activity operator is under no special obligation to ensure that participants understand what they have signed. However, where the operator knew or should have known that a participant was unaware of the legal or practical effects of signing the waiver, they have to take reasonable steps to advise the participant.

This can arise where the participant was told to sign the waiver in a hurried or casual manner and not given adequate time to read and understand the waiver.

Waivers Must not be Unconscionable

The second main requirement of a valid waiver is that it must not be unconscionable. In other words, even if the waiver applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable. To prove that a waiver is unconscionable, the person who signed the waiver and the person relying on the waiver must have been in significantly unequal bargaining positions. The business operator must also have abused this power to get the participant to agree to an unfair waiver.

That said, participants almost always have the choice between agreeing to the waiver and participating, or not participating at all. Courts have upheld waivers even in cases where the participant has traveled long distances to participate in an activity, only to find that if they didn’t accept the waiver they would be turned away. The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a waiver as an inequality in bargaining power that makes signing the waiver unconscionable.

Waivers Must not be Against Public Policy

The third main requirement of a valid waiver is that the waiver must not be against public policy – that is, the waiver is contrary to the interests of the general public as a whole. The power to overturn a waiver because of public policy is rarely exercised by the courts in BC. Waivers in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

Many activities, however, with reasonable care of the business, should be low risk, and a court might find it is against public policy to enforce a waiver where to do so would discourage routine safety practices.

When in Doubt, Seek Legal Advice Out

A properly drafted and presented waiver can provide business owners with strong legal protection from claims. However, it should never be assumed that a liability waiver will provide complete protection from law suits. In cases where there has been significant injury or property damage, or death, a judge should be asked to decide whether the waiver is enforceable.

We hope you have learned something from this week’s blog. Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law. League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002. If you are injured and would like a free consult, give us a call for a free consult. We are here to help injured parties get the fair compensation that they are entitled to.
September 6, 2016
Liability for Unsafe Premises – BC’s Occupiers Liability Act (Video Blog)

Unsafe Premises, an Overview of Occupiers Liability Law in British Columbia

In British Columbia, the law provides that a person who is in physical possession or control over premises has duty of care to see that another person, and that person’s property, is reasonably safe in using the premises (basically, a law against unsafe premises). This area of law is referred to as “occupiers liability law” because under BC legislation, a person who is in physical possession or control property is called an “occupier”.

This law often comes into play when someone suffers a fall in a grocery store or a restaurant, slips in an icy parking lot, trips on an uneven sidewalk, or falls down uneven stairs. Notice, however, that I also said the law applies to people’s property as well. That is, a person’s property, such as a vehicle, must also be reasonably safe in using another’s premises.

While we do not like to think of domestic pets or farm animals, such as dogs or horses as “property”, as they can often be part of the family, the law considers them to be property and also provides that these creatures should also be reasonably safe in using another’s premises. However, the majority of cases in this area of law relate to injuries to people.

The Law Does not Require Perfection but Merely Reasonable Actions to Ensure Safety

Some people believe that if they injure themselves when they are on another person’s property, through no fault of their own, that the owner of the property is automatically responsible for having unsafe premises. This is incorrect. The law only requires a person to take reasonable steps to see that another person or their property is reasonably safe in using the premises. In other words, the law does not require perfection in ensuring premises are absolutely safe. The most common example of injuries on premises are slip and falls on residential or commercial property due to slippery substances such as water, ice, or food. In these cases, the law requires the person controlling the premises to exercise a reasonable standard of inspection and maintenance for hazards. This does not mean that the occupier will be liable for any accident, only an accident where reasonable inspection and maintenance could have avoided the accident – where negligence on the part of the property owner has resulted in unsafe premises.

For example, the courts have found that grocery stores in British Columbia should do regular inspections of their floors about every 30 minutes to two hours depending on the type of store, the area of the store, and how busy it is. As long as the store has a system to ensure this inspection is occurring, and can show that it actually occurred, the store may not be held liable for an injury even if somebody innocently slips on something such as grapes in the produce aisle.

As an example, imagine that you walked into a grocery store and ten minutes before you come along another customer spilled grapes on the floor without noticing. This could totally happen, right? Then you slip on the grapes before the store employees had a chance to notice them and remove the hazard. You fall hard onto the concrete floor, perhaps breaking a bone. It is possible the store would not be liable for your injuries, provided they could show the system they had in place was reasonable and it was being followed, even though the grapes were on the floor for several minutes before you stepped on them.

Again, the law does not require perfection, or for the occupier to be responsible for any serious injury; rather, it only requires they exercise care that is reasonable in all of the circumstances.

Failure to Have and to Follow Systems of Inspection & Maintenance will Result in Liability for Unsafe Premises

That said, I continue to be surprised how large and sophisticated companies, such as large grocery store chains, either fail to have effective systems of inspection and maintenance in place to safeguard the safety of their customer, or simply don’t follow the system they do put in place.

I hope you have learned something from this week’s blog. Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law. League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002. If you are injured and would like a free consult, give us a call for a free consult. We are here to help injured parties get the fair compensation that they are entitled to.

August 30, 2016