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Auto Injury Claims in British Columbia

By Ken Walton, Q.C. – January, 2015

I have been a lawyer for people with accident injuries for over 40 years. If you have any questions arising out of this paper call me at 1-250-595-5368 in Victoria, BC. This article covers the most common aspects of a claim and not every situation.

This paper is based on years of experience in dealing with the Insurance Corporation of British Columbia (ICBC) including matters involves going to trial.

If You Are Injured

If you are injured in a vehicle crash in this province, the chances are good that either your vehicle or the others involved are insured through ICBC.

There are some basic matters that you should know.

You Have Two Rights

In most cases you have two rights:

  1. The first right is money paid to you for your pain and suffering to date and in the future, plus an amount to make up for lost wages, a separate amount for medical expenses (everything from aspirins to prescriptions and various medical aids), payment for household help or gardening and an amount for losses in future (for example, you cannot do your old job and need retraining or you can work but at much reduced hours).

There are other matters which may be claimed but this article is too general to go into such detail.

In most cases (some exceptions for the mentally disabled and people who are not adults) you have a two-year limitation period within which to sue. If you do not sue within that time you cannot make a claim and will not receive money for your injuries, damages and losses.

Generally money for the first right will not be paid to you until your case is settled.

  1. The second right is certain no fault benefits provided in ICBC regulation Part 7. These benefits are paid even if the accident was your fault. These include:
    1. Limited wage loss amounts for employed persons or those deemed employed;
    2. Replacement homemaker services;
    3. Medical and Rehabilitation Benefits;
    4. Death Benefits; and
    5. Optional Benefits (increased income replacement and death benefit) you may have purchased with your policy.

The second right (no-fault benefits) is a payment as you go along.

No fault benefits have a two-year limitation period (including people who are not adults) calculated from the date of the accident or the date of the last payment made directly to you, the injured person.

Your Rights May Be Denied

Your rights may be denied if you do not sue within the two-year limitation period previously stated.

Do You Have To Go To Court If You Sue?

The answer generally is ‘no’. Only about 2% of cases go to court. The only reason to sue is to keep alive your right to be paid for your losses.

ICBC - Who Are You Dealing With?

As a corporation, ICBC is larger than almost 90% of Canada’s top 1,000 companies by revenue. In its annual report of December 31, 2013 ICBC earned premiums of a bit more than 3.9 billion dollars up from slightly over 3.8 billion in 2012.

After all expenses ICBC had a net income of slightly over 368 million dollars up from the slightly over 229 million dollars in 2012. That is what ICBC had left over after paying all its 5,200 employees and their benefits, paying all claims and paying for court related matters including its lawyers.

According to the Financial Post, ICBC ranks in revenue generated at number 107 out of the top 1,000 companies. It is ahead of such well-known companies as WestJet Airlines (#113), West Fraser Timber (# 121), The Royal Canadian Mint (# 124), Tim Horton’s (#131), HSBC Bank of Canada (# 143) and the British Columbia Liquor Distribution Branch, Vancouver (#150).

ICBC Is In The Business Of Making Money

ICBC is in the business of making money not giving it away.

Some people think that because they paid for insurance ICBC is on their side. The problem: the person who caused you injury is usually also insured by ICBC and expects that ICBC is on that person’s side.

So when you see the adjuster that adjuster may well be a person who wants to pay you as little as possible for you to settle your case.

In addition, the adjuster who makes an offer to settle your claim is usually the same person who decides whether your prescriptions should be paid or your physiotherapy or massage therapy be extended. That person may not want to make your case better by authorizing further treatments.

“No crash - no cash”

If your collision damage is insured by ICBC you have to bring your car in for an estimate and get permission to have it repaired. That is not the only reason ICBC wants to assess your car. ICBC has a policy of “No crash - no cash”. So a second and perhaps more important reason for your vehicle being seen is so that ICBC can later tell you that because the damage to your vehicle was so little you could not have been injured.

Such arguments are routinely rejected by judges who rightly hold that any amount of vehicle damage (or even none at all) can still result in injury. After all humans are made of meat not steel and do not have the shock absorbing abilities cars do. Instead the force of the accident is transferred directly to the human body often breaking, stretching or destroying ligaments and other soft tissue. That is the reason that cooks tenderize meat by hammering it to break down the tissues.

To avoid having ICBC make this “No crash - no cash” argument, have your optional collision insurance with a different company as they will not report to ICBC and have no money at risk in how badly you were personally injured.

A chart for the value of injuries

We sometimes hear people tell us that when they went to ICBC they were told that ICBC has a chart for the value of injuries.

The adjuster may tell you that the chart says your injury has a certain value and that is what you will receive. The courts do not have a chart.

You are awarded what your injury is worth not what ICBC thinks its worth from some chart.

How Judges Decide Your Case

Despite publicity from news reports or directly from ICBC, scams are rare. There are just too many ways that the defence lawyer can cast doubt on the truthfulness of an injured person’s testimony. Judges know that by far most people who come before them are honest.

Well over 98% of injury claims are settled without having a judge decide the case.

In those two percent (or less) of claims where a judge hears your case the judge decides how badly injured you were and are now and will likely be in future based on that judge’s assessment of whether you are truthful.

The judge gets an overall impression of your testimony. The judge expects that everything you say will not necessarily be accurate for a variety of reasons. It could be a memory failure about events several years old. It could be that you did not tell your doctor about all of your injuries but just those that were the most painful at the time. Perhaps you did tell your doctor about all of your injuries but the doctor did not write everything down. Perhaps your other injuries although present and of which you did not speak are the most long lasting.

A few or even many errors in testimony will not lead a judge to the conclusion that you are untruthful.

A judge weighs what you say with the evidence of your other witnesses and doctors in concluding what your sufferings have been and what they have a strong possibility of being in future.

How Judges Decide Value

As an injured person the law says you are to be put in the same position as best as money can do as though the accident did not happen. Of course, that is impossible, but the law strives to achieve such a result.

The judge does not have a magic wand to cure you of the injuries and their effects on your earnings, your family life and the hobbies and pleasures that you at one time enjoyed.

All a judge can do is award money (damages) to you to make up for your losses.

Damages such as lost wages (where you work for a salary) are easy to prove.

Future wages may be proven through an economist along with evidence from your employer.

Medical expenses (including non prescription remedies) can be proven by you producing receipts.

The problem comes where a judge has to decide the value of the suffering you have had and will continue to have because someone else was a bad driver.

Generally judges make an award based on what other judges have decided in similar cases in British Columbia. (Case decisions from other provinces are usually not consulted because BC has largely a different system of evaluation that do other provinces).

The lawyers in the case tell the judge their view of the value of your injuries by showing the judge recent BC cases found on such websites as CanLII, a public site containing case decisions.

Tips To Protect You From ICBC

To protect yourself:

  1. Report what happened to your doctor as soon as you can. Take a written statement (date each such statement) and give it to your doctor describing the accident and stating what complaints you have. Keep a copy for yourself and have it in a file containing only accident related information. Repeat this process every time you see your doctor. It is not uncommon that upon your most painful injury becoming a bit better that you pay attention to some other area of you body that previously hurt, but was not as painful as the more significant pain that you had. By giving notes to your doctor your doctor will not have to write everything in the medical chart and the note will remind you as to what you were like at the time it was written.
  2. Take photos of the damage to the car you were in (digital camera not a phone –phone pictures are of poor quality and hard to have developed). Do not take 1 or 2 photos but as many as you can from different angles showing the damage as fully as possible. If the photos are digital have them developed and keep the images in at least two separate computers or devices in case a hard drive fails.
  3. Go to where the accident happened. Take photos from all directions (the path your car was travelling, the path the other vehicle was travelling and from both sides of the road as if you were a pedestrian who saw the car accident.) You do this so that you can explain what happened. As well, roadwork may change the look of the road meaning that this evidence is lost.
  4. If you have visible injuries (bruises, scrapes, casts or anything else) take digital photos, get them developed, date the developed photo with the date it was taken and by whom and store the images in at least two separate devices.
  5. Go to the auto body shop that fixed the car. Get a copy of the invoice that they sent to the insurance company. Often auto body shops take digital photos of the damage. Have them sent to you or placed on a USB.
  6. Keep track of the healing progress of your injuries. You are unlikely to remember when for example, you headaches reduced from every day to one every few days and later when they ceased altogether.
  7. Get a calendar and at the same time each day record your injuries briefly so that you will know, for example how long you had headaches and when they started to lessen in severity.