ICBC – The Determination of Liability
When two or more vehicles are involved in an accident and the issue of liability is contentious, ICBC will assign an adjuster to each motorist to determine the apportionment of liability between the motorists. Generally speaking, the adjusters will negotiate amongst themselves, in the absence of the motorists, and make an internal decision at ICBC on the apportionment of liability between the motorists.
If you are lucky, your adjusters will actually interview the independent witnesses in detail and make a reasoned decision. If you are unlucky, the adjusters will take a halfhearted approach to the determination of liability and make a decision quickly without much investigation.
Contrary to what ICBC may tell you, the ICBC internal determination of liability is not binding on you unless you accept ICBC’s position at face value. Unfortunately, if you do not like ICBC’s internal determination of liability you have the onus of overturning that decision. Without you overturning the decision, the internal decision of ICBC on liability will be the final say on the matter.
You have the option of asking ICBC for an internal review. This process involves a review of the issue of liability, by committee, at ICBC. Alternatively, your other option is to proceed to Small Claims/ Supreme Court on the issue of liability. A lawsuit on the issue of liability requires that you sue the other motorists involved in the accident not ICBC. If the Court decision is different than the one ICBC made internally then the Court decision stands.
Unfortunately, if you want to pursue the issue of liability in Court, ICBC will appoint a lawyer to represent the motorist you are suing. Therefore, you will be up against a lawyer unless you hire your own lawyer. Ultimately, the amount of expense and time needed to pursue a liability only lawsuit makes it not worth a lawsuit in most cases and you are stuck with ICBC’s decision.
In making a decision on whether or not to dispute liability, you should look at the percentage of fault apportioned against you based on ICBC’s decision. A finding of 25% or less fault against you will not affect your safe driving.
The ICBC determination on liability has some bearing on the outcome of your personal injury claim in that ICBC’s position on the claim will be affected by their views on liability. If they feel, for example, you are 50% at fault for the accident then they will only pay 50 percent of the true value of the claim.
If your personal injury matter goes to trial on damages and liability, the finding of liability by the Court will supersede the ICBC decision.
You should note that if ICBC initially found you 0% at fault for the accident and you have a personal injury claim, ICBC can still pursue a claim of liability against you in your personal injury action. In other words, when it is in ICBC’s best interest, they do not necessarily follow their own internal determination on liability. This fact highlights the inherent inequity in the system when ICBC does not have to follow their own rulings.
Another point is even if you win on liability in Court, trying to get ICBC to refund excess premiums paid is difficult. Getting them to correct your safe driving discount is equally as difficult.