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.
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.
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.
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 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.
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.
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.
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.
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.