Personal Injury Compensation
Part 7 Benefits are available to motorists, cyclists and pedestrians involved in an accident with a BC motorist, whether you (the injured party) caused the accident or not. They cover things like medical care, rehabilitation, wage loss, homemaker benefits, death and funeral benefits. If your injuries turn out to be permanent, they may also pay the cost of attendant care, specialized aids and vocational training. There are time limits that govern the application for Part 7 Benefits and ICBC forms that need to be filled out and filed with ICBC. As experienced personal injury lawyers, we will take care of this for you.
Personal Injury Damages
In addition to no-fault benefits you are entitled to compensation (monetary damages) for your injuries to the degree that you are not at fault.
The compensation you are entitled to actually comes from ICBC as the insurer of the “at-fault” driver. This creates confusion because many people think of ICBC as “their” insurance company. In fact, ICBC has an obligation to represent and defend the policy of insurance of the at-fault driver that you are claiming against. This includes minimizing your personal injury claim, which is against the policy of insurance of the at-fault driver.
ICBC’s desire to keep insurance policy payouts on behalf of at-fault drivers low can create a conflict with the interests of injured innocent accident victims. This is one reason we encourage people injured in vehicle accidents to see a lawyer to discuss their cases.
Courts determine what damages a claimant is entitled to on the basis of precedent. It is therefore possible to approximate a range of awards that a court may award, by looking for reported judgments in similar cases. However, every case depends on its own unique facts including the credibility of the victim and the strength of the medical evidence. An experienced personal injury lawyer can explain what damages may be available to you and gather the necessary evidence to prove your claim.
There are a number of different kinds of damages for which you may receive compensation – they are sometimes called “heads of damage” and entitlement must be proven. For a full list of the heads of damage to which you may be entitled you should consult an experienced personal injury lawyer.
Common heads of damage include:
Past wage loss;
Non-pecuniary damages (pain, suffering, loss of enjoyment of life);
Cost of future care and medical treatment;
Loss of future earning capacity;
Loss of prospective earnings;
Money management fees;
Court order interest;
Legal costs and disbursements (expenses to pursue the claim).
Past Wage (Income) Loss
If you can’t work due to injuries caused by another driver, you are generally entitled to recover your total net wage loss. The calculation can be particularly complex for people who are self-employed, have salaries tied to performance bonuses and commissions or who miss out on opportunities to accept more lucrative job opportunities or are unable to capitalize on promising business ventures due to their injuries.
Non-Pecuniary Damages (Pain, Suffering, Loss of Enjoyment of Life)
Out of Pocket Expenses
Commonly, people injured in motor vehicle accidents have additional expenses for things like prescription medications, physiotherapy, chiropractic treatments, massage therapy or other types of rehabilitation programs, taxi fares to and from appointments, and so on. Generally, if you incur an expense that you would not have incurred had you not been injured, you can recover that expense as part of your claim as long as it is “reasonably necessary". It is critical that you retain original receipts and a descriptive record of your expenses.
Cost of Future Care and Treatment
Damages for the cost of future care and treatment compensate you for expenses related to necessary ongoing and future anticipated care. If you have been seriously injured, you may require future care and treatment for an extended period of time – potentially the remainder of your life if you have been catastrophically injured. This can be a complicated calculation and requires consulting medical specialists for an evaluation of your future medical and rehabilitation needs, as well as actuaries to get an objective cost picture of these needs during your recovery and your life span, particularly in the case of catastrophic and permanent or partial disability cases.
Loss of Prospective Earnings
This type of damage award is an attempt to calculate the value of your loss of income from the date of the accident to your projected date of return to work or retirement. In determining the amount, your earning capacity over your working life prior to the accident will be evaluated along with any future contingencies that ICBC may argue should reduce the amount. This calculation is usually carried out with the help of actuaries and economists.
Money Management Fees
If you require care for an extended amount of time, it may be that you may require the assistance of a financial manager to manage your settlement award to ensure that it lasts the remainder of your lifetime. Money management fees damages are intended to account for this cost. This type of damage is generally only available in very serious incapacity cases.
Court Costs and Disbursements
In addition to the claim for damages, you may be entitled to claim court costs depending on the amount of the settlement or trial award. Courts award costs as partial compensation for the costs of pursuing your lawsuit. Costs are calculated or assessed on the basis of a tariff set out in the Supreme Court Act, R.S.B.C. 1996, c. 443. They DO NOT fully compensate the claimant for the cost of pursuing the litigation but go some distance toward paying for the disbursements and a portion of the legal fees charged by your lawyer.
Family Compensation (Death or Wrongful Death Claims)
Some categories of family members can also claim compensation under the Family Compensation Act if a loved one is killed in a motor vehicle accident. The act limits the class of family members to:
The spouse of the deceased;
The children of the deceased; and
The parents of the deceased;
The grandparents of the deceased who have taken over the role of a deceased parent.
Loss of love, guidance and affection (for children of the deceased only);
The loss of services that would otherwise have been rendered by the deceased to the remaining family members;
The loss of financial support to the remaining family members as a result of the death;
Limited out-of-pocket expenses incurred as a result of a death (funeral and related expenses); and
Loss of inheritance;
Tax gross-up and management fees on a future loss award.
Infant Claims (Claims Involving People under 19)
If a person under the age of 19 is injured and has an ICBC claim, the matter is more complicated because of the involvement of the Public Guardian and Trustee. An infant cannot legally enter into a settlement with ICBC and then receive settlement funds. Rather, the Public Guardian and Trustee has to be involved in the decision-making process and the approval of any settlement. Settlement funds must be held by the Public Guardian and Trustee until the infant reaches 19 years of age.
Where an award of pain and suffering and loss of amenities of life (non-pecuniary damages) is less than $50,000, the procedures to get approval of an infant settlement are less complex. If the settlement for non-pecuniary damages is more than $50,000, the process is more complicated. The Public Guardian and Trustee must provide comments, which are presented to the Court at a hearing. The Court generally will approve the settlement so long as the Public Guardian and Trustee approves the settlement. If the Public Guardian and Trustee disapproves of the settlement, you can still proceed to a hearing seeking a Court Order to approve the settlement but the hearing is usually contested.
Whenever an infant is involved, the complexities associated with achieving a resolution to the claim increase. If the child is close to the age of majority, it may be appropriate to wait until the child reaches 19 before settling to avoid involving the Public Guardian and Trustee. Not only do you avoid the need to provide written submissions to the Public Guardian and Trustee but also, the Public Guardian and Trustee fees associated with the approval of the settlement and their administration charges on managing the settlement funds can be eliminated. However, this is not always possible and sometimes ICBC will issue a Notice to Proceed which forces you to proceed before the age of majority (19) is reached. If you are served with a Notice to Proceed, you should contact a lawyer immediately as this will affect the limitation period.