By David Hay
Injured cyclists are typically concerned about the time limits associated with compensation claims. There is a tremendous amount of misinformation and confusion about when to report an accident, file a claim and sue for damages. There are some general guidelines pertaining to cyclists claiming an injury to person or property.
First, the most important statute relating to civil claims is the Limitation Act, which provides that claims of negligence in British Columbia must be commenced within two years of the date on which the right to do so arose. If you are a cyclist and you are injured by a negligent motorist, you must file a lawsuit in a BC Court registry prior to the two-year anniversary of your accident or your case will be statute-barred and completely extinguished. If the defendant is a municipality, the limitation period may be shorter. There is no way to breathe life back into a claim once it is statute-barred, so there is rarely any way to repair the damage in these circumstances.
In some cases, the running of the limitation period may be postponed. For example, if the injured cyclist is a minor (below the age of 19 in British Columbia), the clock does not begin ticking on the minor’s claim for damages until the minor becomes an adult – at the age of 19. If the wrong doing was not “discoverable” by the victim until sometime after the actual loss, the clock does not begin to run until such time as a reasonable person would have discovered they had a cause of action. That kind of postponement does not typically apply to a case involving a cyclist injured in an accident: the wrong doing there is usually immediately apparent.
In a recent decision of the British Columbia Court of Appeal, a panel considered whether the Insurance Corporation of British Columbia owed a duty of care to a cyclist who was a minor at the time of the accident by way of advising him or his mother of his entitlement to benefits through ICBC, and any limitations on his entitlement owing to the Limitation Act. Let us examine the facts.
In 1995, the Plaintiff, age six, was seriously injured when the bicycle he was riding collided with a motor vehicle. Cyclists actually have two claims when injured in a motor vehicle accident. First, they have a tort (negligence) claim against the driver/owner of the motor vehicle. Secondly, because they usually fall within the definition of “insured” in the regulations made pursuant to the Insurance (Vehicle) Act, they are entitled to insurance benefits from ICBC with respect to the injury suffered in the accident. Those benefits can consist of disability benefits and rehabilitation benefits.
In the case under consideration, the court examined the application of the Insurance (Vehicle) Act, which states that the limitation period for actions against ICBC for insurance benefits is not postponed by the fact that the cyclist was a minor.
Evidently, ICBC did not tell the child’s mother about the two-year limitation. After it had expired, the mother sued ICBC, alleging that ICBC knew the child was suffering from a brain injury and knew that the child and his mother were relying on ICBC to give proper advice about any applicable limitation periods and his entitlement to rehabilitation benefits.
In its two-part analysis, the court found that the claim against ICBC was not a simple statutory claim for no-fault benefits. Because the claim included allegations of negligence against ICBC, the court held that the running of time could be postponed owing to the cyclist’s age. ICBC argued that even if that were the case, the claim was not one known to the law, in that ICBC had no general duty to provide legal advice to cyclists relating to the time within which claims must be pursued. Again, the court disagreed and allowed the action to proceed on the basis that it had merit. The court reviewed a long line of cases involving insurance companies and individuals and found that there was a relationship between the cyclist and ICBC which disclosed “sufficient foreseeability and proximity to create a prima facie duty of care.”
As dry and technical as this may all seem, the refusal to provide rehabilitation benefits to a brain injured child is anything but devoid of emotion. Despite the court’s ruling, cyclists everywhere, particularly adult cyclists, must recognize that ICBC is under no general obligation to provide them with legal advice. That is simply not the way the system works.