Making a Personal Injury Claim (Script 188)

From Clicklaw Wikibooks

This script describes making a personal injury claim, going to court, and dealing with the Insurance Corporation of British Columbia, called ICBC.

Accident victims may get compensation

If you’re hurt in a motor vehicle accident, you may be able to get two types of compensation (payments):

  • No-fault accident benefits: everyone in BC who owns a vehicle must buy basic insurance from the Insurance Corporation of British Columbia, called ICBC. This insurance pays money, called “accident benefits,” to people hurt in a vehicle accident. Even if you caused the accident, ICBC will pay you these no-fault accident benefits, as long as you’ve met the conditions of this insurance. Generally, these benefits include temporary total disability benefits (disability benefits for lost income up to $300 a week while you are disabled due to your injuries) and medical and rehabilitation benefits.
  • Damages: if the accident wasn’t your fault (or only partly your fault), you can get “damages” for your pain and suffering, lost wages (past and future), future care, out-of-pocket expenses, and other losses. This is called a “tort” claim. These damages aim to put an injured person who didn’t cause the accident in the same position they would have been in if the accident had not happened (as far as money can do this).
ICBC will typically offer you money to settle or resolve your claim. Normally you won’t want to settle a personal injury claim until your medical condition is stable and your doctor can say when your injury will probably be resolved and whether you will have any lasting effects. Then, if you agree with ICBC’s offer, you can settle your claim. Once you settle your claim, you can’t make any further claims. That’s true even if you later suffer new effects from your injuries, which you hadn’t expected. You will also have to sign a “full and final release of all claims” before receiving the settlement money.

How do you make a claim?

You make a claim to ICBC. Report the accident by calling ICBC’s Dial-A-Claim at 604.520.8222 in the lower mainland and 1.800.910.4222 elsewhere in BC. You can also make a claim online. An ICBC adjuster will investigate the accident and decide who caused it. The adjuster will also review your medical information and expenses, so keep all your receipts.

See your doctor

If you’re injured, see your doctor as soon as possible, as your doctor is in the best position to prescribe treatment, such as medication and physiotherapy. ICBC will then consider funding the cost of that treatment.

Report the accident promptly

You have to report the accident promptly to ICBC. Some people prefer to see a lawyer before talking with ICBC. If you do that, your lawyer can report the claim to ICBC for you.

What if you disagree with ICBC’s decision about your case?

If you disagree with ICBC’s offer or its decision about who is at fault, or if you don’t know if the offer is fair, you should see a lawyer for advice. If you or your lawyer can’t reach an agreement with ICBC, you may sue the owner and driver of the other vehicle in the accident. ICBC’s decision on who is at fault or what amount is fair for tort damages does not bind a court. A judge can decide the matter without considering what ICBC decided.

You also have two options with ICBC. First, it has an appeal process. You can appeal ICBC’s decisions on who is at fault, its settlement offer, its denial of your claim, and its treatment of you. ICBC also has a Fairness Process that you can try if you’re not satisfied.

What about suing?

You may want to sue the owner and driver of the other vehicle if ICBC:

  • refuses to pay accident benefits: ICBC may refuse to pay accident benefits. Or it may pay less than you think is fair.
  • refuses to pay damages: ICBC may refuse to pay damages. Or it may pay less than you think is fair.
  • decides that you’re at fault for the accident, partly or totally: ICBC may decide that you caused the accident and refuse to pay damages. Or it may decide you’re partly at fault and reduce the damages by the proportion you’re at fault.

In all these cases, you should get legal advice before you decide what to do.

What are the deadlines to sue?

If you decide to sue, you must start the lawsuit within 2 years from the accident date, or you lose the right to sue. If you received no-fault benefits, then the 2-year deadline to sue runs from the date of the last benefit payment (not the accident date).

If you were under the age of 19 at the time of the accident, the 2-year deadline to sue for damages does not start to run until you turn 19. But if you’re under 19 at the time of the accident, the 2-year deadline to sue for accident benefits still runs from the date of the last benefit payment (it’s not delayed until you turn 19). In some cases, you also have to give notice of your claim sooner (for example, if a municipality is involved, you must give it notice of your claim within 6 months of the accident).

Where do you sue?

  • Small Claims Court: sue in Small Claims Court if you are claiming $25,000 or less. You don’t need a lawyer in Small Claims Court, but you can have one. Check scripts 165 to 169 on Small Claims Court.
  • Supreme Court: sue in BC Supreme Court if you are seeking more than the $25,000 limit in Small Claims Court. You should have a lawyer in Supreme Court because the procedures are more complicated.

How much does it cost to sue?

If you’re suing for damages, you have to pay your own lawyer. Most lawyers in this area accept cases on a “contingency fee agreement.” This means that you pay your lawyer’s fees only if you win damages at the end of your lawsuit, based on a percentage of what you recover. But you must still pay expenses, even if you lose. Discuss it with your lawyer when you first see them. ICBC pays the lawyer for the people you are suing. If you win your lawsuit, the court may order the other side to pay some of your legal fees.

Lawsuits in Supreme Court don’t usually go to trial because both sides settle the case before trial, but not always. Sometimes, cases go to mediation and an independent person acts as a mediator to help you and the other side reach a settlement agreement.

Can ICBC sue you?

Yes, ICBC can sue you in some cases. For example, if you drink and drive or text and drive and cause an accident that injures a person, that person may sue you. ICBC can pay the injured person and then demand that you pay it back. The various situations in which ICBC can collect that money from you are quite complex. So if you’re involved in such a situation, you should get legal advice.

Caution—get legal advice

See a lawyer before you make a personal injury claim. It’s critical to know all your rights and be prepared. Insurance companies, however fair, are in a conflict of interest about what to do with your claim.

Summary

If you’re injured in a motor vehicle accident, you can claim accident benefits from ICBC. If the accident wasn’t your fault, or was only partly your fault, you can also claim damages for pain and suffering and other losses. The ICBC adjuster can settle your claim if you agree. Because that agreement will be binding, you may want to see a lawyer before you agree to a settlement to learn if the offer is fair. If you can’t agree on the value of your claim, or who is responsible for the accident, you may have to sue. There are strict time limits for suing, and if you miss the time limit, you lose your right to sue. So you should see a lawyer as soon as possible after an accident for legal advice.

More information

For more on accident benefits and damages for accident victims, check script 185, “Insurance Benefits and Compensation for Accident Victims”. Check the ICBC website.


[updated April 2015]

The above was last reviewed for accuracy by Alison Murray and edited by John Blois.


© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.


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