ICBC and Personal Injury Claims (12:XII)

A. Making a Claim with ICBC

The IVR provides for a number of benefits that are administered by ICBC, as the motorist's insurer, in instances where the motorist damages his or her automobile and/or sustains injuries after an accident. These regulations can be thought of as the motorist’s “insurance policy”. All of the benefits to which a motorist is entitled are explained in the IA Regulations. ICBC adjusters in claim centres around the province administer these benefits. The following outlines the general process to be expected.

1. Dial-A-Claim

When calling Dial-a-Claim, the claimant will be put in touch with a representative who will take down pertinent details of the accident, including the time, date, place, license identification of the vehicles involved, etc The representative will ask the claimant to give a brief narrative of how the accident occurred. This narrative will be taken down and entered into the computer files at ICBC The claimant will then be given a claim number that will follow the claim and the claimant through the entire process. The claim number enables ICBC to find the claimant’s file through any office and to quickly identify the adjuster who is dealing with the claim.

2. Meeting with the Adjuster

The Dial-a-Claim representative will schedule an appointment for the claimant at a local claim centre. When the claimant goes to the appointment, he or she will talk to an adjuster about the accident. The adjuster will ask the claimant to make a statement about how the accident occurred and about the injuries that the claimant sustained.

The adjuster will also ask the claimant to sign “No-Fault Benefit Claim Forms”. These forms are not “releases” and by signing them, the claimant is not waiving any of his or her rights to benefits or to damages for injuries or loss emanating from the accident. The forms simply allow for the release of the claimant’s MSP number, the claimant’s SIN number, information from the claimant’s doctor, and information from the claimant’s employer. Nonetheless, it would be prudent for unsophisticated or illiterate claimants to have someone, other than the adjuster, go over the forms with them before signing.

3. The Adjuster’s Perspective

While the adjuster is an agent of the claimant’s own insurance company, for purposes of administering the “no-fault benefits” the adjuster is also an agent of the tortfeasor’s insurance company and, in that capacity, has an interest in minimizing the claimant’s injuries and damages.

The adjuster will typically encourage the claimant to minimize the extent of the injuries or damages. The claimant should be aware of this and should guard against agreeing that everything is satisfactory when it is not. Claimants should be cautious not to express optimism about their injuries and should try to neither understate nor overstate their injuries.

Where fault is an issue, claimants may find the adjuster manipulating their narrative to place them in a negative light. This is often done in very subtle ways and claimants should be aware of it so that they can guard against it. Typically, an adjuster will draw a map or diagram of the accident scene and state that it is “not to scale”. The Corporation may later claim that the diagram is an accurate depiction of the accident and tantamount to a confession of fault.

The claimant should avoid agreeing with interpretations of the accident that are made by the adjuster and should endeavour to have the adjuster transcribe the claimant’s exact words. Typically, the adjuster will write out the claimant’s statement in longhand and then ask the claimant to review it. The claimant may feel reluctant to make changes because the adjuster has taken the time to write out the statement. The claimant should not hesitate to make changes and initial them, or to ask the adjuster to start all over again.

The claimant should be extremely careful in making statements to the adjuster. The claimant must understand that these statements will later be scrutinized. In cases involving serious injury and cases where liability is disputed, the claimant should have a lawyer with him or her when he or she makes statements to the adjuster.

4. The “Independent” Medical Assessment

Under the IVR, ICBC may appoint a doctor to make an “independent” medical assessment of the claimant’s condition. While some of these doctors are objective, others may have a strong defence bias. Their task is to see if they can locate weaknesses in the claimant’s case. The claimant should take care neither to exaggerate nor to minimize the injuries.

5. ICBC Private Investigators

The claimant should be aware that private investigators hired by ICBC, do exist. They check up on claimants and the evidence that they gather can be used against claimants. For example, if the claimant says that he or she cannot mow the lawn or lift a bag of flour, and then goes outside and does just that, he or she runs the risk of being photographed and/or videotaped by a person employed by ICBC.

6. “Minimal Damage” and ICBC Policy

The claimant should also be aware that ICBC has a well-publicized policy of declining to honour claims for injuries or losses where there is “minimal damage” to the automobiles and/or persons involved in the collision. Where the damages fall below $1,000, a claimant may find him or herself confronted with an adjuster who states flatly that ICBC has a policy of refusing to pay claims in certain cases where science has established that injuries and damages cannot occur. An adjuster may also tell a claimant that he or she is without discretion in settling claims, and that he or she is required to employ classifications and a system of scaling, with an unsuccessful or unsatisfactory result for the claimant. In all these situations, the claimant should know that these decisions do not represent the law, but are merely ICBC policy, and can be and often are challenged successfully in court, where judges may give larger awards. Recently, it appears that ICBC is revoking this policy.

B. Identifying Parties to the Dispute

The plaintiff(s) in a given case may be any or all of the following:

• the injured party (which could be the driver, occupant, or bystander) or the estate of the deceased; the relatives of the injured party; the registered owner of the vehicle in the accident; and/or the guardian of a party lacking the requisite mental capacity to commence an action.

In general, anyone whose negligence may have caused or contributed to the motor vehicle accident should be joined as a defendant. This might include:

• the drivers; passengers; the estate of deceased defendants; registered owners of vehicles; ICBC or other insurers; ministry of BC transportation; municipalities; the parties responsible for the manufacture or maintenance of the vehicle; and/or employers.

Appropriate third parties to the dispute will often include insurance companies (including ICBC) who, while not themselves tortfeasors, may be under an obligation to indemnify the defendant.

NOTE: It is very important to properly determine who the parties are. Failure to do so may adversely affect the client’s claim, and/or may result in an empty judgement. See Chapter 20: Small Claims Procedure for more information (the information holds true in Supreme Court as well).

NOTE: When the accident occurred “in the course of employment”, the Workers Compensation Act [WCA], RSBC 1996, c492, may apply. Where the WCA is engaged, the Act assumes exclusive jurisdiction over the case, and an action in tort is barred. It is therefore extremely important to fully explore the employment relationship(s) of both plaintiffs and defendants before proceeding. See Chapter 7: Workers’ Compensation for more information.

C. The Fault Requirement

The present system of accident compensation is fault-based. The claimant sues in tort, which can be divided into two areas: intentional torts and negligence. Injuries that are caused with intent to contact (in the case of battery) are intentional torts. Injuries that are caused by a lack of reasonable care by one party are negligence claims. Negligence encompasses all departures from accepted reasonable standards.

A prerequisite to any tort action is that the damages suffered by the claimant were not caused by the claimant’s own fault. If the claimant is partly at fault for the accident, damages will be reduced in accordance with the claimant’s degree of fault. For example, if the claimant is 50 percent to blame for the accident, his or her damages will be reduced by a corresponding amount of 50 percent.

Cases where fault is an issue frequently go to trial. Claimants should be advised that often the adjuster will suggest a claimant is fully at fault for the accident, when in fact she or he may only be partially at fault. The claimant should recognize that the adjuster is trying to dissuade the claimant from litigating a claim. The claimant may well end up establishing 50 percent fault on the part of the other driver and obtaining a 50 percent settlement.

D. Private Settlements

Private settlements should be discouraged. Potential plaintiffs who consult an LSLAP clinician regarding an action for damages for personal injury should always be advised to consult a lawyer prior to settling a claim, whether privately or with ICBC. Similarly, potential defendants in such matters should be told to seek the advice of a lawyer and to contact ICBC prior to paying out any sums, so as not to prejudice their rights and their plan of insurance with ICBC.

E. Inequality of Bargaining Power

The courts may set aside a release of claim for personal injuries on the grounds that it was in circumstances where it can be shown there was inequality of bargaining power between the parties.

In Towers v Affleck, [1974] 1 WWR. 714 at 719 (BCS C), Anderson J. stated that the question to be determined is whether “the plaintiff has proved by a preponderance of evidence that the parties were on such an unequal footing that it would be unfair and inequitable to hold him or her to the terms of the agreement which he or she signed. While the court will not likely set aside a settlement agreement, the court will set aside contracts and bargains of an improvident character made by poor and ignorant persons acting without independent advice unless the other party discharges the onus on him or her to show that the transaction is fair and reasonable.” See also Pridmore v Calvert (1975), 54 D.L.R. (3d) 133 (BCCA.).

On the basis of the preponderance of the evidence (or on a balance of probabilities), therefore, the following questions should be asked:

1. Was there inequality of bargaining power?
2. If so, would it be unfair or inequitable to enforce the release of claim against the weaker party?

Where a plaintiff signs a Release of Claim, the defendant will not be able to dismiss a claim the plaintiff subsequently makes using Rule 9-7 of the BC Supreme Court Civil Rules, if the evidence leads the court to conclude that the plaintiff was misled, even if unintentionally, into believing the document signed was releasing claims in areas that the plaintiff believed to be irrelevant.

This reasoning relies on the plea of non est factum (Latin for “not my deed”), a common law plea allowing a person who has signed a written document in ignorance of its character to argue that, notwithstanding the signature, it is not his or her deed. In other words, if the person’s mind does not go with the deed of signing, the release is not truly his or her deed.

Unconscionability and misrepresentation may also be successful grounds for rendering an otherwise valid Release of Claim invalid. See Clancy v Linquist (1991), 2 CCL.I. (2d) 63 (BCSC), per Scarth J.

In Mix v Cummings (1990), 46 CCL.I. 203 (BCSC) [Mix], per Perry J., a general release discharging and releasing defendants from all claims, damages, and causes of action resulting, or that will result, from injuries received in an automobile accident was upheld on the following basis:

1. the court found no mutual mistake of fact based on a misconception as to the seriousness of the injuries sustained in the accident;
2. the release was not the product of an unconscionable or unfair bargain; and
3. the plea of non est factum and want of consensus ad idem were unfounded in the circumstances.

The implication of the Mix judgment is that the presence of any of the above factors in a particular set of facts may be sufficient to invalidate a general release. Note, however, that the mere fact that a plaintiff’s injuries became more serious than he or she anticipated when signing a release will generally not invalidate the release.

F. Dealing with Lawyers

Most personal injury lawyers will take motor vehicle accident claims on a contingency basis. Contingency fees are calculated as a percentage of the gross sum that is recovered. Lawyers are reluctant to work on a contingency basis, unless there is a good chance that they will recover damages for the claimant. If a case does not appear winnable, lawyers may ask the claimant to pay an hourly rate, or at least to pay disbursement costs up front.

1. Contingency Fees

Contingency fees usually range between 20 percent and 25 percent if the case is settled before trial, and 33 percent if the case goes to trial. Some lawyers use a sliding scale, so that the fee increases as the trial date approaches. The Law Society imposes limits on contingency fees, and the claimant is unlikely to encounter lawyers who charge more than 33 percent.

2. The Contingency Fee Contract

The contingency fee contract must be in writing and must contain a provision that it is the claimant’s right to have the contract reviewed by the Supreme Court for reasonableness.

Contingency fee contracts often provide that if the claimant discharges the lawyer, the claimant will have to pay an hourly rate for services up to the date of discharge and that these fees must be paid before the lawyer will transfer the file to another lawyer. A claimant who discharges a lawyer can have the lawyer’s bill reviewed by a Registrar of the Supreme Court in a hearing called an Assessment. The Registrar will make a ruling about the reasonableness of the bill and whether the claimant should be required to pay the bill right away.

3. Disbursement Costs

Disbursement costs are the expenses incurred for medical reports, transcripts of evidence, police reports, motor vehicle searches, etc. Most law firms will pay these costs for the claimant, and collect them at the end of the lawsuit.

4. Marshalling of Reports

Over the course of the claim, the claimant’s lawyer will collect medical records and deliver them to the defence counsel. If there is a claim for loss of prospective earnings or cost of future care, the claimant’s lawyer may also collect and deliver economic briefs and reports by vocational specialists, accountants, actuaries, and other professionals. The claimant’s lawyer will also receive defence reports and expert summaries. All of this goes on behind the scenes, and unless the claimant’s lawyer is vigilant about sending the claimant reporting letters, the claimant will be unaware of any of these activities.

5. Common Concerns

Claimants often worry that their lawyers are not keeping them up to date. Claimants should understand that some lawyers handling personal injury cases set up their operation as a sort of factory. They handle large numbers of cases, staff their offices with paralegals, send out form letters and rarely meet their clients. Clients should not be afraid to book an appointment with their lawyer to get a progress report on their case.

G. Which Court has Jurisdiction?

1. Provincial Court, Small Claims Division

The Small Claims limit is $25,000 (effective September 1, 2005). Accordingly, claims for minor injuries may come within the jurisdiction of the Provincial Court. The procedure for bringing a case to trial in Small Claims Court is fully set out in this Manual in Chapter 22: Small Claims Procedure.

A claim commenced in Small Claims court can be transferred to Supreme Court on application by one of the parties or by a judge on his or her own initiative. Such an application should be made as early as possible for a greater chance of success. A judge at the settlement/trial conference, at trial, or after application by a party at any time, must transfer a claim to Supreme Court if he or she is satisfied that the monetary outcome of a claim (not including interest and expenses) may exceed $25,000. However, there may be exceptions. A claim will remain in the Small Claims Division if the claimant expressly chooses to abandon the amount over $25,000. For personal injury claims, a judge must consider medical or other reports filed or brought to the settlement/trial conference by the parties before transferring the claim to Supreme Court.

2. Supreme Court of British Columbia

The Supreme Court of British Columbia is governed by the Supreme Court Civil Rules.

Actions for damages over $25,000 (effective September 1, 2005) come within the jurisdiction of the Supreme Court of British Columbia. Although LSLAP clinicians cannot appear in the Supreme Court, the following represents a brief overview of the procedure for bringing a case to trial at this level.

A claim commenced in Supreme Court can be transferred to the Small Claims on application by one of the parties or by a judge on his or her own initiative. The judge must be satisfied that the monetary outcome of the claim will not exceed $25,000. Such an application should be made as early as possible for a greater chance of success, and where appropriate, may be accompanied by an express statement by the plaintiff abandoning any claim to damages in excess of $25,000.

a) Regular Trial

(1) The Notice of Civil Claim

A claim in the Supreme Court of British Columbia is initiated by filing a Notice of Civil Claim. The Notice of Civil Claim is served upon ICBC and the defendant(s). The IAR deals with situations where there are unknown drivers, hit and run accidents, etc. Where the defendant is an uninsured motorist, ICBC will receive the pleadings and file a defence.

(2) The Response to Civil Claim

After the claim has been served, ICBC will appoint defence counsel on behalf of the insured, or on behalf of itself if there is an uninsured motorist, and file a Response to Civil Claim.

(3) Reserving a Trial Date

After the Response to Civil Claim is filed, the parties will reserve a trial date. The trial date usually falls approximately one to one-and-a-half years ahead. The reason for this delay is that the court registry is overbooked. The delay is not usually a problem since it takes some time to organize the trial and it is often not until some time after the accident that the full extent of the claimant’s injuries can be determined. If additional time is required, when the trial date arrives, the trial can be adjourned by consent of the parties.

(4) The Examination for Discovery

Once the trial date is reserved, an Examination for Discovery may be held. Discovery of the plaintiff is initiated at the option of defence counsel and will typically occur six months to one year after the lawsuit is initiated. The Discovery will usually take one day but can last longer in certain cases. Prior to the Discovery, defence counsel will scrutinize the claimant’s statements to the adjuster. At the Discovery, the defence counsel will cross-examine the claimant about the manner in which the accident occurred and the extent of the claimant’s injuries.

Most cases are not settled until after the Discovery, since it is at this stage that defence counsel is able to assess the credibility and seriousness of the claim and make a determination respecting the sort of damages to which the claimant may be entitled.

b) Fast Track Litigation - Rule 15-1

This rule was introduced to provide an efficient and less expensive means of dealing with cases where the trial will last 3 days or less.

Fast track litigation may apply to an action if:

1. The only claims in the action are for money, real property, builder's lien, and/or personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
   • a) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
   • b) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss; and
   • c) the fair market value, as at the date the action is commenced, of all real property, all interests in real property, all personal property and all interests in personal property claimed in the action by the plaintiff.
2. The trial of the action can be completed within 3 days
3. The parties to the action consent, or
4. The court, on its own motion or on the application of any party, so orders.

NOTE: The court is not prevented from awarding damages in excess of $100,000.

If this rule applies to an action,

1. any party may file a notice of fast track action in Form 61;
2. the filing party must serve all other parties on record with a copy; and
3. the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed or if the court so orders.

• This rule ceases to apply if the court, on its own motion or on application of any party, so orders.
• Parties to a fast track action can serve on another party a notice of application or an affidavit in support of an application ONLY after a case planning conference or a trial management conference has been conducted in relation to the action. This rule does not apply if:
  • a. The court orders the fast track action to cease;
  • b. If an application is made by a party, judge, or master to relieve a party from this requirement if
    • i. It is impracticable or unfair to require the party to comply; or
    • ii. The fast track litigation application is urgent;
  • c. If the action is scandalous, frivolous, or vexatious (as per Rule 9-5);
  • d. If the action will proceed by summary judgment or summary trial (Rule 9-6 and 9-7);
  • e. If an application is made to add, remove, or substitute a party; or
  • f. The parties consent.
• Fast track action must be heard by the court without a jury.
• Examinations for discovery of a party of record by all parties of record who are adverse in interest must not, in total, exceed 2 hours or any greater period to which the person to be examined consents, unless otherwise ordered by a court
• All examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date, unless the court orders otherwise or the parties to the examination consent.
• If a party to a fast track action applies for a trial date within 4 moths after the date on which this rules becomes applicable to that action, the registrar must set a date for the trial that is not later than 4 months after the application for a trial date.

H. Damages

Claimants often have unrealistic expectations about the amount of damages they are likely to receive. Claimants should be cautious about listening to stories of awards told by relatives and friends as these stories may be exaggerated and/or may be missing crucial pieces of information.

1. How Damages are Assessed

The court will determine what damages a claimant is entitled to on the basis of precedent. It is therefore possible to project what the court will award by looking for similar cases. The judgments will outline the nature of the injuries sustained by the claimant and court’s assessment of damages.

2. Heads of Damage

To understand an award, it is necessary to consider all the heads of damage. For example, a claimant who is a brain surgeon at the height of his or her career and who has a finger amputated might have a loss of prospective earnings claim in the millions and a relatively small claim for non-pecuniary losses. In contrast, a claimant who is retired and has a leg amputated may have a relatively low loss of prospective earnings claim but a relatively high claim for non-pecuniary damages.

The major heads of damage are as follows:

a) Non-pecuniary Damages

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