Making an at-fault crash: ICBC and conspiracies to cover up liability. Should the victim’s testimony be accepted over ICBC’s decision on liability?
What if the victim describes the cause of the crash differently than other witnesses? What if the victim has a head injury that medical experts say makes it impossible for him to recall the crash?
In this week’s decision of Havens v. Insurance Corporation of British Columbia (2016 BCSC 36) the plaintiff (Mr. Havens) crashed his motorcycle in North Vancouver. He was rendered unconscious and suffered a brain injury. No vehicle stopped to acknowledge involvement in the crash. Sometime after regaining consciousness, Mr. Havens began to recollect that a red pickup truck had caused the crash. His evidence was that the pickup had lumber extending beyond its tailgate, which struck his helmet as the truck cut him off. This caused him to lose his balance and crash his motorcycle.
The trial was with regard only to liability for the crash. ICBC had concluded that it was a single-vehicle crash, and as such, Mr. Havens was at-fault. He alleged that ICBC had removed wood fibre from the exterior of his helmet to prevent a finding of liability against the unidentified red pickup truck.
Mr. Justice Myers accepted the medical evidence that it would have been impossible for the plaintiff to recall the accident. He went on to find that the evidence indicated that allegation against ICBC were concocted and that Mr. Havens’ testimony was inconsistent, ultimately dismissing the action:
 The helmet featured prominently in Mr. Havens’ evidence and that of his family. This was because he alleged it had pieces of wood fibre on its exterior and that ICBC or its experts removed them. In his argument, Mr. Havens does not rely on the wood pieces and acknowledged that they could have been caused by road debris where the helmet struck the ground or “they were simply fibres that were initially visible from the crack on the helmet which was initially described as off-set.” Nevertheless, the issue is significant from the point of view of the reliability of Mr. Havens’ evidence.
 After the accident, the helmet was in Mr. Havens’ hospital room. He said that after he was released from hospital he gave it to the independent adjuster for ICBC, Ms. McAuley. That is not correct. In fact, an engineer from MEA Engineering, Mr. Goulet, picked it up from Mr. Havens on December 21, 2010.
 At trial, Mr. Havens said there were wood remnants on the outside of the helmet. Mr. Havens’ father and stepfather said the same thing. However, the latter two took photos of the helmet, which they said they gave to Mr. Havens. Mr. Havens adduced photos of the helmet. They did not show wood splinters on the outside of the helmet.
 The RCMP constable who investigated said he did not notice wood remnants in the helmet and had he done so he would have made a note.
 I do not accept there were wood remnants on the exterior of the helmet. This is something that was concocted, intentionally or unintentionally by Mr. Havens and his family assisted him. I also do not accept that the wood remnants inside the helmet were due to the accident. They were either there previously or were somehow ended up there afterwards.
 I accept the evidence of Dr. O’Shaughnessy that it would have been impossible for Mr. Havens to be able to recall the accident.
 That would be sufficient to dismiss the action, but the other inconsistencies in Mr. Havens’ evidence and the evidence of the other witnesses confirm that conclusion. There were significant differences in the versions of the accident and surrounding events that Mr. Havens gave to experts, in discovery and at trial. His counsel acknowledged that Mr. Havens was a “poor historian”. It is acknowledged that Mr. Havens recalled details that may not have been accurate. However, it is argued that the simple details of the accident were consistent and should be accepted. I cannot accept that Mr. Havens’ memory was selectively accurate.
 Mr. Havens described a truck that was quite distinctive and creating black smoke. It is difficult to conceive that the other witnesses would not have noticed the red truck had it been there.
 I do not find Mr. Havens’ recollection of the accident to be reliable or credible. There is no evidence of another vehicle being involved.