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Common questions asked by motor vehicle accident claimants in British Columbia

This article was written by Michael Dew, a Vancouver lawyer who practices civil litigation. Click here for contact information and further details about Michael’s practice. This article provides only information, not legal advice. If you require legal advice you should consult a lawyer.

 

Introduction
This article sets out answers to some frequently asked questions about ICBC injury claims. Please be aware that the information provided in this article is brief and very generalized. There are many additional rules that apply in addition to the general rules stated in this article, and many exceptions apply.
 
While all injured persons should be cautious of lawyers who are over eager to sign them up them as clients, it is important to realize that the claims process can be complicated and lawyers can offer valuable services to protect the interests of injured persons by guiding them through the claims process and maximizing recovery.
 
If you do intend to make a claim, whether on your own or with the assistance of a lawyer, it is important to act promptly as there are important deadlines that apply within weeks of an accident.
 
This article is provided for information only and does not constitute legal advice. If you require legal advice, you should promptly consult a lawyer.
 
Persons involved in motor vehicle accidents in British Columbia can typically make two types of claims: a “tort” claim and a “Part 7” claim.  The following table provides a general description of some of the rules that apply to each of those claims. Additional rules and exceptions will apply depending on the circumstances of each case.
 

 

 
Tort Claim
(name derived from the Latin word for “injury”)
Part 7 Claim
(the name is a reference to Part 7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447-83, which specifies the “no-fault” benefits payable to accident victims).
Who can make the claim?
Any injured person who can prove that another person was wholly or partially at fault for the accident.
Any person who:
·         has an insurance policy with ICBC;
·         lives in a household with someone who has an insurance policy with ICBC;
·         is an occupant of vehicle a licensed in BC; or
·         is a cyclist or pedestrian who collides with a vehicle insured in BC.
Requirement to prove fault.
Claimant must prove the other person was, at least partially, at fault for the accident.
Claimant is not required to prove that anyone else was at fault. Part 7 “no-fault” benefits are generally available regardless of who was at fault for the accident.   
Requirement to prove causation of injury.
The claimant must prove that he or she was injured in the accident and suffered damages (i.e. harm) as a result.
For medical, wage loss, and homemaker benefits the claimant must prove that he or she requires those benefits as a result of the accident.   
Limitation / notice period.
Court action to be filed before expiration of the 2 year limitation period. 
30 and 90 day notice periods apply, 2 year limitation period applies.
Type of compensation that can be recovered.
·         Pain and suffering (loss of enjoyment of life). Awarded in proportion to the duration and severity of injury. In Canada there is a cap of approximately $350,000 on these “non- pecuniary” damages i.e. even a young avid sportsperson who is rendered quadriplegic and brain damaged is only awarded approximately $350,000 for pain and suffering. 
·         Cost of future care.
·         Out of pocket expenses (keep all receipts!).
·         Past wage loss.
·         Loss of future earning capacity.
·         Medical and rehabilitation expenses, up to a maximum of $150,000.
·         Wage loss benefits, up to a maximum of $300 / week and only to claimants who were totally disabled from employment within 20 days of the accident. Benefits payable for a maximum of 104 weeks.
·         Homemaker benefits (for helper needed due to homemaker being injured). Limits apply.
·         Death benefits; limited amounts paid to surviving spouse and children.
 
 
 
Some lawyers strongly advise claimants against attending ICBC for an interview and advise that claimants leave it to the lawyer to handle all aspects of the claim. While it is true that having a lawyer handle your claim is the “safest” option, to some extent lawyers have an incentive to demonize ICBC and scare clients into hiring a lawyer (who will take a fee) rather than having the claimant handle the claim themselves with no fee to the lawyer. Generally, if your claim is relatively minor you might be able to handle it yourself. If your claim is significant you should likely hire a lawyer. However, if you were a driver of a vehicle in the accident and others may claim against you then you are required to cooperate with ICBC to preserve your insurance coverage. The following briefly summarizes some of the key points to consider when dealing with ICBC shortly after an accident (additional requirements apply for some accidents e.g. hit and run accidents, claims against municipalities, etc.)
 
For drivers: ensure you do not compromise your liability insurance coverage
  1. If you were a driver possibly at fault for the accident and other people may be claiming against you then it is a requirement of your insurance coverage that you cooperate with ICBC by providing them with details about the accident etc. If you fail to cooperate with ICBC then you may be in breach of your liability insurance contract and may end up being personally liable if others claim against you for causing the accident. Therefore, if you were a driver you should cooperate with ICBC. If you are afraid that by giving information to ICBC as a driver you may compromise your own claim for injuries, you should consult a lawyer.
  2. ICBC should be allowed the opportunity to inspect and take photographs of the damage to the vehicles, especially where there is ICBC collision coverage for the damage in question.  
 
For injured persons (including drivers): protect your right to claim for injuries
  1. Promptly give ICBC notice of the accident (see Regulation s. 97(1)).
  2. Within 30 days of the accident, the claimant must provide ICBC (by registered mail or delivery in person) particulars of the circumstances in which the accident occurred, and the consequences of the accident e.g. injuries suffered (see Regulation s. 97(1)). This statement can be brief and can explain the accident in a neutral way without indicating who was at fault for the accident.
  3. Within 90 days of the accident the claimant must fill out an accident benefit claim form (see Regulation s. 97(1)). A “CL22 form” is commonly used. This form requires the claimant to identify his or her injuries and claimants should take care to list all injuries and symptoms they are aware of, and not be under-inclusive. Claimants should not minimize or exaggerate the severity of their injuries or symptoms.
  4. With respect to making a claim for injuries, there is no requirement that the claimant to attend ICBC for an interview in person, the relevant forms can filled out and then delivered or sent by registered mail. Further, there is no requirement to provide or sign a detailed written statement describing in minute detail how the accident occurred, but detail required to comply with Regulation s. 97(1) must be provided. The claimant does not have to sign any authorizations for the release of information (e.g. medical records, employment records, etc.) to ICBC. Exceptions to these rules apply once a court action is started, or if the claimant wants to recover payment for missed wages, medical rehabilitation expenses, etc.
 
If you have been involved in a serious accident and sustained substantial injuries (e.g. broken bones, concussion, severe whiplash), or if you are likely to miss a significant amount of time away from work as a result of the accident, you should likely hire a lawyer to assist you with your claim. There are many deadlines and technical requirements that need to be complied with to successfully prosecute a significant personal injury claim and the expertise of a lawyer to guide you through the process will likely be worth the legal fees if the claim is significant. If any of the following apply then claimants should likely hire a lawyer:
  1. there is concern that the injuries may last longer than a few weeks;
  2. there is an issue as to who was at fault for the accident; and/or
  3. issues such as municipal liability, hit and run drivers, or other complicating factors are involved,
 
Keep in mind that personal injury lawyers in British Columbia generally charge between 20% and 33% of the compensation the claimant receives.
 
On the other hand, if you were involved in a minor accident and have only minor injuries (e.g. mild soft tissue injuries which will resolve in a couple of days / weeks) your net recovery may be better if you negotiate directly with ICBC rather than hiring a lawyer. Keep in mind that ICBC may be willing to pay a premium to have a claim settled early and without the involvement of lawyers (who generally make the claims process protracted and more expensive). Indeed, ICBC may pay a premium to settle early to avoid the risk of having to pay more later on because your symptoms escalate. Uncertainty about how your symptoms will progress counts against settling early from your perspective and if you are concerned that your symptoms may escalate and / or linger, you should almost certainly delay settling your claim, and you may consider hiring a lawyer. It is unwise to settle a claim without legal advice unless all injury symptoms have fully resolved because once you settle your claim is over and you cannot recover more later on.
 
Keep in mind that court proceedings to recover compensation must be commenced within two years of the accident.
 
No. Even if you had a pre-existing injury, perhaps even with ongoing symptoms at the time of the accident, you will still be entitled to compensation for aggravation to that injury caused by the accident. The goal of personal injury compensation is to compensate (to the extent money can) for the difference between the plaintiff’s actual post-accident condition and the condition the plaintiff would have been in had the accident not occurred.
 
As a gross generalization / rule of thumb, pain and suffering for soft tissue injuries is compensated for at approximately $1,000.00 per month:
 
[There is a] distinction between soft tissue injuries which resolve within a matter of months and those which persist with residual pain. Non-pecuniary damages for the former are generally assessed in the range of $1,500 to $7,500, while such damages for the latter are generally assessed in the range of $6,000 to $17,000, depending on the facts of each case.
(Gill v. Janzen, 2008 BCPC 15 at para. 23).
 
In Bagasbas v. Atwal, 2009 BCSC 512, Satanove J. spoke to a range of
awards between $1,500 and $6,500 for soft tissue injuries that resolve within a period of several months.
(Greenhow v. Vergara (25 November 2009), New Westminster M112566 (BCSC), Slade J.).
 
Unfortunately the compensation awarded is seldom felt by injured persons to be enough to fully compensate them for the pain and suffering actually experienced: most plaintiffs would prefer to not have the injuries and not have the money. Therefore, your focus should be on recovery and returning to your pre-accident health as quickly as possible.
 
Personal injury damages are designed to compensate the plaintiff for injuries suffered, not to punish the person who caused the injury. Therefore, even if though you may be angry at the person that caused the accident that injured you, once it is established that they are legally liable for your injuries, the fact that they were especially careless generally does not mean that you will recover additional compensation. Rather, the compensation you will receive depends on the severity and duration of injuries you suffered.
 
Conclusion
The above provides a brief generalized overview of some of the issues to consider after an accident. As noted, additional rules, and exceptions, may apply depending of the facts of the individual case.
 
If you require assistance with your British Columbia Motor Vehicle Accident claim or have a question about whether you should hire a lawyer, consider contacting the author of this article, Michael Dew.
 
 
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