When two or more vehicles are involved in an accident where there is a contentious issue on liability, ICBC generally has an adjuster working for 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 adjuster will actually interview the independent witnesses in detail and make a reasoned decision. If you are unlucky, the adjuster will take a halfhearted approach to the determination of liability and just make a decision quickly without much investigation.
ICBC seldom considers the driver or his/her passenger’s evidence unless it helps the other motorist. This is due to the perception of bias. ICBC, however, relies heavily on independent witnesses.
If there is doubt, ICBC often finds the two motorists equally at fault (50% each). There is an incentive for ICBC to split liability down the middle as the safe driving discount of both drivers is then affected.
Contrary to what ICBC may tell you, the ICBC internal determination of liability is not binding on you unless you simply accept ICBC’s position at face value. The unfortunate part is that 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, which 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. The lawsuit requires that you sue the other motorists involved in the accident but not ICBC. If the Court decision is different than the one ICBC made internally than 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.
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 again you will not affect your safe driving.
The ICBC determination on liability has some bearing on the outcome of your personal injury claim in the sense 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 of the accident then they will only pay $0.50 on the dollar for your 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, it does not prevent ICBC, in your personal injury action, from claiming there is liability against you. In other words, when it is in ICBC’s interest, they do not necessarily follow their own internal determination on liability.