A B.C. Supreme Court Justice has found a former Prince George man remains entitled to benefits from the Insurance Corporation of British Columbia for the injuries he suffered while unloading an all-terrain vehicle off the back of his pickup truck.
The case was heard in Kamloops, where Sheldon Prosofsky now lives, but at the time of the June 2005 incident he was residing in Prince George. Instead of starting its engine, he had put the ATV in neutral and was using the brake as he eased it down a ramp off the back of the truck's box.
An under-inflated rear tire got caught in the ramp, causing the machine's front end to rise up and both Prosofsky and the ATV fell to the ground. He suffered injuries to his spine that required four vertebrae along his lower back to be fused.
The repair has since become unstable and Prosofsky could need further surgery, Justice Hope Hyslop noted in a reasons for judgment issued this week.
ICBC honoured his claim for rehabilitation benefits until June 2010 when the insurer denied him further help because the ATV could not be licenced under the Motor Vehicle Act.
In 2007, new legislation regarding vehicle insurance came into effect but ICBC waited another three years to invoke what it said was the relevant regulation. By that time, it had reimbursed Prosofsky seven times for medication over those three years.
Prosofsky responded with legal action, arguing in part that he remained entitled to benefits because the injury arose out of the use of his pickup truck, a licenced vehicle.
Most of the submissions centred on the legal definitions of the words "vehicle," "occupant" "operate" and "steering."
In the end, Hyslop agreed with Prosofsky's position and found ICBC ignored the reason why he went into the box of his pickup truck in the first place.
"Pick-up trucks are used not only to transport passengers, but to transport items in their
boxes," Hyslop wrote in the decision. "That is the purpose which differentiates them from motor vehicles such as sedans and SUVs. The plaintiff was injured as a result of using his pick-up truck to transport an item."
Hyslop also noted ICBC agreed that had he been injured while removing a bicycle from the box, he would have been entitled to benefits. But she also indicated that had he been struck by the ATV, it could have been a different story.
Hyslop did add a proviso to her decision.
Prosofsky's counsel had also argued ICBC's payment of benefits from 2005 to 2010 precluded the insurer from invoking the regulation under the doctrine of promissory estoppel.
Hyslop said that if it turns out she's wrong in her decision on whether Prosofsky remains covered under the regulation currently in place, his counsel has not made out the requirements to meet the standard for promissory estoppel.
The full ruling can be found at www.pgcitizen.ca.
