Crash victim tied up in court a decade later
Moving the Insurance Corporation of B.C. to a no-fault model is meant to stop the kind of drawn-out civil litigation still underway in connection with a fatal school bus crash north of Summerland nearly 10 years ago, says the province’s public safety minister.
Oliver man John Borba died June 7, 2011, when his northbound Chrysler Cirrus sedan crossed the centre line on Highway 97 and collided head-on with the bus, which was carrying 14 students and one teacher from Princess Margaret Secondary School in Penticton. The bus side-swiped another vehicle, injuring two more people.
Coroners later determined wet roads and nearly bald tires on Borba’s car caused it to hydroplane and slide into the bus.
The most seriously injured person was student Evyn Haberstock, who suffered head injuries and was airlifted to Kelowna General Hospital.
All these years later, she’s still fighting ICBC – Borba’s insurer – for compensation.
The matter should finally be decided following a 23-day trial in B.C. Supreme Court in Kamloops that’s scheduled to start March 22.
It was initially set for July 2020, but cancelled because there wasn’t sufficient court time available
The trial would have been rescheduled for a third time if ICBC got its way in court this week, but a judge ruled it would have been unfair to Haberstock
to delay the case again.
“While she can be awarded her costs (for trial preparations), further delays will be emotionally difficult for her. She will undoubtedly be subjected to a host of further medical examinations to, at the very least, provide an update on her medical condition,” Justice Leonard Marchand wrote in his Feb. 10 decision.
“It is likely that she will also be subjected to further examinations for discovery. Not only will further medical and/or legal examinations be intrusive, stressful and expensive, they will occupy a great deal of time that Ms. Haberstock will never get back.
“This is time that Ms. Haberstock
could otherwise spend on her wellness, things that bring her joy or advancing a career.”
ICBC sought to “fundamentally recast” its defence against Haberstock’s initial 2014 civil claim, according to the judge, by producing a new expert report that alleges negligence on the part of Dynamic Specialty Vehicles, which outfitted the 24-seat school bus, and the B.C. Transportation Ministry, which inspected and licensed the bus.
The judge suggested, however, that ICBC’s lawyers should have done their homework years ago.
“As between a sophisticated party that had all of the information necessary to pursue its currently desired defences much earlier and an injured party who will suffer real and substantial prejudice if the new allegations of negligence are allowed, the result is clear. The application to plead the new allegations of negligence must be dismissed,” concluded Marchand.
The decision notes Haberstock has already settled with School District 67 and the teacher who was driving the bus, and of the 15 injury claims that arose from the crash, two are still before the courts.
Those who already settled “are presumably waiting for the last claim to be resolved to determine whether the total claims exceed Mr. Borba’s insurance policy limits. If that is the case, their settlements will be subject to a pro rata sharing,” Marchand said.
While he declined to comment specifically on Haberstock’s case because it’s still before the courts, Public Safety Minister Mike Farnworth confirmed Friday it’s the kind of legal nightmare the NDP government is trying to end when ICBC switches to the no-fault model.
“What I can say generally is that Enhanced Care coverage is specifically intended to avoid the need for lawsuits and any associated delays to receive lost wages and medical care costs going forward,” Farnworth said in a statement.
“ICBC’s move to Enhanced Care coverage on May 1 will ensure people get the care they need, when they need it, and for as long as they need it – regardless of who caused the crash. … In the coming weeks, we will be announcing the final details of the suite of care benefits that will be available to anyone injured in a crash, including those with catastrophic and life-changing injuries.”