Personal Injury & ICBC Claims
Personal injury claims can be brought by anyone who has suffered psychological or physical injury
as a result of the negligent or intentional actions of another person or legal entity, such as a
company. The most common personal injury claims arise out of motor vehicle accidents. In
British Columbia, this will mean the involvement of the Insurance Corporation of British Columbia [ICBC
claims]. ICBC will typically be involved in any injury claim arising out the use of a
motor vehicle in British Columbia, whether that injury is to a driver, passenger, pedestrian or
cyclist. Injured persons are often confused at the role of ICBC in their injury claim,
believing that ICBC is “their” insurance company. In fact, ICBC represents both the
injured person and the at-fault person. Arising from this is the fact that there are two distinct
and separate claims with ICBC available to injured persons; the Tort
claim and the No-Fault or Part VII claim. Most claims are
settled through negotiation. In some cases it may be necessary to pursue your claim through a
lawsuit (see Anatomy of a Lawsuit).
Personal injury claims may also arise as a result of injuries suffered on property (Occupier’s
Liability), as a result of professional negligence
[such as medical malpractice or dental malpractice] or may arise as a result of intentional acts
such as physical or sexual assault. These types of claims are fault based and it is the
responsibility of the injured person to show that their injuries were caused by the fault or intent
of another person. There is a possible exception to this if you were engaged in the course of
your employment at the time of your injury. In that case, regardless of who is at fault, you
may be limited to making a Worker’s Compensation Claim.
With any type of injury claim that you may have, there are time limits that apply. These time
limits can vary considerably, depending upon the persons involved, the place or circumstances of
the injuries or the type of claim that is made. If you delay in seeking legal advice, your
right to make a claim may be barred by the passage of time. In most instances, injured persons
will be dealing with the insurer for the person who caused their injury. Insurance companies
are represented by insurance adjusters (see Role of
the Adjuster) who are either hired by the insurance company or are direct employees of the
insurer. To protect their interests, many injured people seek representation from a lawyer
(see Role of the Lawyer), in British Columbia also called a
Barrister and Solicitor.
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THE ROLE OF THE LAWYER
Your lawyer should have undivided loyalty to you and represent only your best interests. In
general, lawyers have two roles in their representation of you. They act as your advisor when
dealing with you, and as your advocate when dealing on your behalf. People hire lawyers for
different reasons. Some people want to ensure that they are treated fairly and that their
rights are protected. Some people do not want to have to deal with adversarial situations and
prefer to have a professional act for them. Others want to ensure that they receive all they
are legally entitled to by way of proper compensation. Whatever the reasons or motivations, a
person should ensure that if they hire a lawyer, they hire someone with whom they feel comfortable
and in whom they have confidence. You may end up dealing with your lawyer for a number of
years and dealing with personal or intimate details of your life. Therefore, choosing a lawyer
is not a decision that should be made lightly. Please feel free to contact
us if you are considering retaining a lawyer.
When acting as your legal advisor, your lawyer should explain to you, in plain language, the
strengths and weaknesses of your claim, how the legal system and litigation process (anatomy
of a lawsuit) works, what sort of results can and cannot be achieved, and what steps need to be
taken or may be taken to assist in successfully concluding your claim. Your lawyer should
advise what alternate solutions may be available to you and provide advice as to the best course to
follow. Your lawyer should listen to you and hear your complaints, and provide you with
information and assistance in resolving them. While a lawyer cannot always be available to
speak with you, your concerns should always addressed or your calls returned in a timely fashion.
As your advocate, your lawyer will deal on your behalf with the insurance
adjuster or with the insurer’s lawyer. Your lawyer should seek to obtain for you the
full benefit of the legal system. Your interests should be placed first and your case should
be advanced with vigor and determination. Your lawyer should utilize skill and experience to
gather the evidence required to best support your case. Your lawyer should ensure that your
receive appropriate care and that you are afforded access to the best available treatment or
rehabilitation facilities as is required in your case. Your lawyer should work to ensure that
you receive benefits when you need them. Your lawyer should skillfully negotiate a settlement of
your claim in a timely fashion. If negotiations fail, your lawyer should be skilled in the use
of other settlement strategies and tools such as settlement conferences or mediation. If
these fail, your lawyer should guide you through the litigation
process and forcefully present your case for you at trial.
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THE ROLE OF THE INSURANCE ADJUSTER
If making a personal injury claim, most injured persons, acting without their own lawyer , will
deal with an insurance adjuster. The adjuster works for, or is hired by, the insurance company
for the person who caused the injury. The adjuster’s job is to act for and in the best
interests of the insurance company. The adjuster does not work for, nor represent the best
interests of the injured person. An adjuster is under no obligation to inform an injured
person of their rights or of facts or information in the injured person’s favour. An
adjuster’s job is to assess the exposure to liability of the insurance company, gather such
information that may provide or assist in presenting defenses, and resolve the claim at as low a
cost as possible. Many insurance adjusters will try and deal fairly with injured persons, but
always within the context of minimizing expense to the insurance company.
When you are injured and an insurance company becomes involved, their adjuster will want to meet
with you and take a written statement from you. They will also want access to your full
medical history. This is not done for your benefit. It is done for the benefit of the
insurance company. The adjuster will use the information obtained to investigate defenses to
your claim. Your statement may later be used against you in court. If the insurer is also
your insurance company (as is the case with ICBC) you may not be able to obtain benefits until you
have provided a statement and medical authorizations. It is always advisable to seek legal
advice from a lawyer prior to doing this.
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ROLE OF DOCTORS AND THERAPISTS
Obviously, your doctor and therapists will play in a key part in your treatment and recovery from
your injuries. Both medically and legally, it is important that you visit your doctor on a
regular basis until you have substantially recovered from your injuries. It is also important,
both from a medical point and legal point of view that you provide your doctor with an accurate
history of your complaints and full and thorough explanation of what problems you are
encountering. If you do not, your doctor may not be able to properly assess and treat
you. Legally, it may affect your doctor’s opinion which could have a negative influence on
your claim.
If you are making a personal injury claim, you have a legal obligation to minimize the effects your
injuries have on you and to promote your own recovery. This means that you have an obligation
to follow reasonable medical advice, including attendance for appropriate therapy. Your doctor
will advise you whether or when a therapy or a rehabilitation program is appropriate and may make a
recommendation as to what program would be best for you. Sometimes, the insurance company will
want you to attend a program of their choosing. While the program they suggest may be
beneficial, your doctor is in the best position to judge your needs. You may wish to discuss
the insurance company’s request with your doctor or lawyer to determine if it is appropriate for
your needs and the best course to follow. There may be alternatives that better suit you.
The insurance company may also wish to have you examined by a doctor of their choice (an I.M.E. or
independent medical examination). Depending on your circumstances, you may have little choice
in this. Before agreeing or refusing to attend this examination you should obtain legal
advice.
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ICBC CLAIMS
Introduction
ICBC injury claims are those injury claims arising out of the use or operation of a motor
vehicle on a highway in British Columbia (B.C.). Typically, injured persons are drivers,
passengers, pedestrians or cyclists although this list is not exhaustive. While residents of
BC may be injured through the use or operation of a motor vehicle outside this province, and should
promptly report any such claims to ICBC, this discussion will be limited to claims within B.C.
ICBC injury claims involve two parallel claims having some degree of overlap. One claim is
against the owners and drivers of all vehicles that caused or contributed to the accident and the
injury. Lawyers often call this the tort claim [a tort is a
legal term for a wrongful act, independent of a contract, committed upon a person or property,
causing injury or damage]. The tort claim is based on the law of negligence which requires the
injured party to establish some degree of fault on the part of those who caused or contributed to
the accident and the injury. Under the law of negligence, injured parties cannot recover in
damages for that portion of their injuries and loss caused through their own fault [lawyers call
this contributory negligence]. Consequently, if you are found to be partially at fault for the
accident or if you are found to have contributed to your own injuries (as may be the case for
failing to wear a seatbelt) your compensation will be reduced to the extent that your own fault
contributed to the accident and your injury.
The other claim is against ICBC for certain accident benefits which ICBC must provide to an injured
party regardless of whether or not the injured party was wholly or partly to blame for the accident
and the injury. These benefits are often referred to as “no fault” benefits or “Part
7” benefits because they are set out in Part 7 of the Regulations to the Insurance (Motor
Vehicle) Act of B.C.. Any “insured” person, as that term is defined in the Regulations, is
entitled to no fault benefits.
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THE TORT CLAIM
The onus is on the injured parties in a tort claim to prove all of elements required by the law of
negligence in order to obtain the damages to which they are entitled. While the nuances of the
law of negligence can be complex the injured parties must be able to prove the identity and fault
of those responsible for the accident, the injuries caused by the accident and the value of
the losses and damages resulting from the injuries.
Identity and Fault - The Accident Scene
The Motor Vehicle Act requires persons involved in a motor vehicle accident on a highway to remain
at the accident scene to render assistance and exchange vehicle registration and licence
information with all parties involved in the accident. The Act also requires those involved to
report the accident to the police within 24 hours in urban areas (48 hours in rural areas) if the
damages to person and property exceeds $1000 ($600 if a motorcycle is involved). When in doubt
it is best to report the accident to the police as soon as possible. It is also extremely
important to obtain the names and phone numbers of any witnesses who saw the accident, especially
if there is likely to be a dispute as to how the accident happened and who is at fault. You
should also promptly give ICBC notice of the accident and your injuries whether through your lawyer
or directly through “Dial a Claim” (520-8222). Where the injuries and damages may be
significant and the question of fault is in dispute your lawyer may need to retain an accident
reconstruction expert to provide an opinion as to how the accident happened. Such opinions can
be costly (often more than $1,000) and therefore the circumstances must justify such an
expense.
The Injuries Caused by the Accident - Seeing your Doctor
If you have been injured you should see your doctor
as soon as possible and report the full extent of your symptoms including the location and severity
of each complaint. This will assist your doctor in prescribing the appropriate medical
treatment early on and will help to establish the nature and extent of the injuries caused by the
accident. The frequency of additional visits is a matter to be determined between you and your
doctor. However, you should see your doctor for follow up advice if your symptoms do not
improve, if you experience additional symptoms which your doctor has not investigated or if you
have any questions or concerns regarding the prescribed treatment.
There may be disputes as to whether or not a particular injury either exists or was caused by the
accident or some other cause such as a pre-existing medical condition. Expert medical opinions
are essential in any personal injury claim and are often required in order to resolve such
disputes. Under the law of negligence it is not a defence for the person responsible for the
accident that the injured party was more vulnerable to injury due to an inherent weakness (such as
a thin skull or a weak back). However, a pre-existing injury that is worsened by the accident
will often reduce the award for damages as the responsible party is liable only for the damages
caused by the aggravation of the injury.
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TYPES OF DAMAGES
Establishing the Value of the Injury Claim
Proving the value of your loss as a result of your injuries requires a thorough analysis of the
types of damages recognized by law. The types of damages discussed below apply to ICBC claims
and other personal injury claims. These “heads of damage” are the most common but are not
necessarily an exhaustive list. They include pain and suffering, past income loss, future
income loss, special damages, cost of future care. Certain issues, such as collateral
benefits, may affect your claims as well.
Pain and Suffering
Also called general or non-pecuniary damages [damages which do not have a specific dollar value
such as loss of income], damages for pain and suffering are meant to compensate the injured persons
for the loss of quality of life for duration of their injuries. In addition to the pain
following an injury, injured persons are often restricted in their recreational activities, they
may have difficulty sleeping, their interpersonal relationships may be strained, and their overall
enjoyment of life adversely affected in many ways.
The assessment of your pain and suffering requires a careful assessment of your specific
circumstances including the severity and duration of your injuries, the degree of recovery and the
potential for future problems related to your injuries. In Canada, recovery for pain and
suffering is limited to approximately $280,000 for the most catastrophic injuries such as
quadriplegia and severe brain damage. Less severe injuries are assessed with this upper limit
as a guidepost. In addition to whiplash injuries, accident victims may also experience
psychological problems, fibromyalgia and chronic pain, mild traumatic brain injuries, catastrophic
and permanent injuries, aggravation of previous injuries and many other conditions, which can
involve complex medical and legal issues. Your lawyer
will assess your particular circumstances in relation to the most current awards that the courts
are making for those in similar circumstances with similar injuries and conditions.
Past Income Loss
This type of damages is for loss of income suffered from the date of the accident to the date your
claim is resolved following a settlement or judgment at trial. Due to recent changes in the
law, most ICBC claims allow recovery for past income loss net of taxes and other prescribed
deductions from gross income. For employed persons who receive a steady pay-cheque, the
calculation of past income loss is relatively straightforward. However, the loss of
recoverable non-wage benefits such as vacation pay, accumulated sick time, pension benefits and
commission income must also be considered. For self employed persons, seasonal workers, and
those with a spotty employment history, the calculation of past income loss is often more
difficult. Past income loss can also involve a past loss of opportunity such as a lost
promotion or lost sales. Any such losses should be well documented at the time they occur.
Past income loss must be calculated on the basis of the available medical evidence. You should
therefore consult with your doctor early on if your injuries affect your ability to work You
should follow your doctor’s recommendations as to
whether you should vary your work schedule or your job duties.
Future Income Loss
Future income loss is best described as a loss of future income earning capacity beyond the date of
settlement or judgment at trial. These damages are often awarded if the injuries result in
some degree of permanent physical or mental disability. The award of damages can be
significant depending upon the age of the injured person, the pre-accident earnings history and the
severity of the disability. Even comparatively minor disabilities may entitle the injured
person to damages for loss of future income earning capacity.
As with past income loss, these damages must also be assessed on the basis of available medical
evidence. Expert opinions from medical specialists such as neurologists, orthopaedic surgeons,
and occupational therapists may be required. The injured person may require retraining and the
assistance of a vocational counsellor. Expert opinions from economists, accountants and
actuaries are often required to assist in calculating the approximate dollar value in today’s
dollars of these future losses. The probability of future events [often called contingencies]
such as layoffs, promotions, and future illnesses are also considered in assessing damages for loss
of future income earning capacity.
Special Damages
Special damages is a term used to describe all out of pocket expenses the injured person has
incurred as a consequence of the accident and the injuries. These expenses typically include
expenses for medical treatment (such as for physiotherapy, massage, prescriptions) for parking and
transportation, for homemaking services and property maintenance and any other expense which the
injured party can prove were reasonably required as a result of the accident. Medical evidence
may be required in order to claim for expenses such as homemaking services and property
maintenance, for a special bed or for treatment such as physiotherapy and massage therapy,
chiropractic treatments and acupuncture [such treatment is often called passive therapy]. You
should therefore consult with your doctor before you incur any such expenses as they may not be
recoverable if your doctor does not recommend them.
Cost of Future Care
Damages for cost of future care are meant to compensate injured parties for the cost of future
medical treatment, rehabilitation, home care and any other assistance the injured party may require
to maintain, as much as is possible, the lifestyle they enjoyed before the accident. These
damages may also include the cost of any appliances and special devices (such as wheelchairs and
stairlifts), grocery delivery, home cleaning assistance and child care services. This list is
not exhaustive. Damages will depend on the medical evidence with regard to the projected
future needs of the injured party. In certain circumstances a claim can be made by the injured
party “in trust” for both past and future care provided by a family member or friend.
Collateral Benefits
Many injured parties are entitled to receive benefits from sources other than ICBC for injury
related losses and expenses. These sources may include Employment Insurance, Social Assistance
and Group Insurance through work or a private plan, to name a few. It is very important for
injured parties to consider applying for any available collateral benefits as these benefits may be
deductible from a tort claim (and are often deductible from a Part
7 claim) possibly even if the benefits were available but not applied for or
received. Some collateral benefits are not deductible from a tort claim allowing the injured
party to be lawfully double compensated. Please contact us if you
have any questions as to whether a particular collateral benefit is or is not deductible from your
tort claim.
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THE FATAL ACCIDENT – WRONGFUL DEATH CLAIMS
The surviving spouse, parent, grandparent or child of a person killed as a result of the negligent
use or operation of a motor vehicle (or many other acts of negligence) may have a claim against the
responsible party under the Family Compensation Act of British Columbia. The purpose of the
Act is to place the eligible survivors in the same economic position that they would have
maintained if the family member had not been killed. The damages under the Act differ from
those to which an injured party is entitled. For example, the survivors do not have a claim
for pain and suffering (although they may have a claim for nervous shock if they witnessed the
accident). The survivors can claim for loss of financial support, loss of household
assistance, loss of guidance and loss of inheritance. As with an injury claim, the survivors
must establish fault or negligence on the part of the responsible party in order to be entitled to
damages. While medical opinions may be required if there is any dispute as to the cause of
death or for calculating life expectancy but for the death, the opinions of accountants, economists
and actuaries are crucial to establishing the value of a wrongful death claim.
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THE PART 7 CLAIM
Regardless of fault, ICBC is required to pay certain benefits to persons injured or the surviving
family members of persons killed [death benefits] in Canada or the United States as a result of the
use or operation of a motor vehicle. Only persons who are defined as “insured” under the
Regulations are entitled to Part 7 or “no-fault” benefits. The term insured is defined
broadly in the Regulations such that most B.C. residents, including many cyclists, pedestrians, and
many without an ICBC policy, are eligible. All figures quoted below are accurate as at October 2000
but are subject to change.
Injured “insured” persons are entitled to receive mandatory benefits for necessary medical
treatment (including passive therapy); occupational, physical, or speech therapy; or for orthotic
devices (such as special shoes) and prostheses (artificial limbs). Certain other benefits are
permissive such that these benefits are only payable if they are recommended by ICBC’s doctors.
These permissive benefits include a modified motor vehicle, modifications to the home, homecare,
certain prescribed medical aids (such as a wheelchair and special bed).
Injured “insured” persons are also entitled to wage loss benefits of up to $300 per week if
they are disabled from working within 20 days after the accident and if they have an employment
history that satisfies the definition of “employed person” in the Regulations. Injured
homemakers who, within 20 days after the accident are not able to perform most of the household
tasks, are entitled to housekeeping assistance to a maximum of $145 per week.
Death benefits are payable to certain survivors of the deceased “insured”. These benefits
include funeral expenses up to $2,500. Surviving spouses, dependant parents, dependant
children and spouses of a dependant parent are entitled to lump sum benefits of between $500 to
$5,000. Additional weekly supplemental survivor benefits may also be payable from $35 to $145
per week for 104 weeks.
As with the tort claim, collateral benefits (benefits paid or payable from sources other than ICBC)
may be deductible from ICBC’s obligation to pay Part 7 benefits. In most cases ICBC will not
pay for benefits until all other disability benefits from other sources have been
exhausted. In any case it is important to apply for Part 7 benefits soon after a motor vehicle
accident as the Regulations require notice to ICBC of the circumstances and consequences of the
accident not later than 30 days after the accident and a signed Accident Benefit Application form
within 90 days of the accident.
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WORKER’S COMPENSATION
If you have Worker’s Compensation coverage, and are injured while you are working, you may lose
the right to make a personal injury claim against the person responsible for your injury. The
Worker’s Compensation Act removes the right to make a personal injury tort
claim if both the injured person and the liable party are covered by WCB and acting in the
course of employment at the time the injury occurs. That is, the claim must be pursued as a
WCB claim. The Worker’s Compensation Board is a No-Fault insurance system, meaning that you
are entitled only to limited benefits, based upon your level of disability, and they are payable to
an injured person regardless of whether that person is responsible for their own injury or it was
caused by someone else. If only the injured person is working at the time of the injury, and
the liable party is not, then the injured person can elect to pursue either a WCB claim, or a
personal injury tort claim. Our firm can advise you as to which is
the preferable course to take, given your particular circumstances.
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OCCUPIERS LIABILITY
In British Columbia owners and occupier’s of property are required to ensure the property is
reasonably safe for all persons using the property. This obligation is set out in the
Occupiers Liability Act which defines an occupier to include those who have both physical
possession of the premises and those who have responsibility for and control over the
premises. Accordingly, in certain circumstances there can be more than one occupier as may be
the case with a landlord and tenant. The term premises is broadly defined and, in addition to
land and structures, includes ships, trailers, railway cars and aircraft (while stationary).
The Act limits the liability of an occupier for the negligence of an independent contractor (for
example, a contractor conducting repairs or renovations) if the occupier took reasonable care in
the selection and supervision of the contractor. In such a case any injury claim would be made
directly against the contractor. The Act also limits the liability of occupiers to trespassers
and to persons on farm or recreational property in certain circumstances. The Act does not
apply to the Provincial or Federal Governments in respect to highways. In such cases any
injury claim caused in part by the condition of the highway may include a claim against the
Ministry and any maintenance companies responsible for maintaining the highway.
Not all injuries on premises result in successful claims against the occupier. Where the
occupier has left a dangerous hazard on the premises which causes an injury (such as an unlit
stairwell) the occupier’s liability may be easily established. However, the occupier can
avoid liability by proving that a program of regular maintenance and inspection of the premises was
in place and was carried out at the time the injury occurred. Consequently, many injuries
resulting from slips and falls at shopping malls and grocery stores will not attract liability and
damages if a program of inspection was both in place and performed at a reasonable time before
the injury occurred. Please contact us for assistance in determining whether or not an injury
caused on premises in British Columbia will support a claim against an occupier.
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PROFESSIONAL NEGLIGENCE CLAIMS
Professional negligence claims can arise when a person has suffered loss or injury because a
person, holding themselves out as an expert in their field, did not meet the standards expected of
a person in their profession. Negligence claims are typically brought against hospitals,
physicians, dentists, engineers, architects, insurance agents or brokers, accountants and
lawyers. These claims may be straightforward but are often difficult and protracted because of
the technical nature of the matters involved. Depending on the nature of the case, the fact
that a mistake may have been made, of itself may not be determinative, as the courts make a
distinction between a professional “error in judgement”, and actual “negligence”. In
general, an error in judgement by a professional will be excused by the courts as long as that
professional met the standards of a prudent and diligent member of that profession in exercising
his or her judgement. As well, even if a professional acted negligently, a person must show
that the negligence was a cause of the loss or injury that occurred.
If you feel that you have suffered a loss because of the negligence of a professional person, it is
advisable to seek legal advice as soon as possible.
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