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Difference between revisions of "ICBC and Personal Injury Claims (12:XII)"

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ICBC and Personal Injury Claims (12:XII) (view source)

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== A. Making a Claim with ICBC ==
== 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.
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.
 
A claimant must also keep in mind that drivers have certain responsibilities at the scene of an accident. For a full list of these responsibilities, please see '''CHAPTER THIRTEEN: MOTOR VEHICLE ACT''' of the LSLAP Manual. 


=== 1. Dial-A-Claim ===
=== 1. Dial-A-Claim ===
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=== 4. The “Independent” Medical Assessment ===
=== 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.  
Under the IVR, ICBC may appoint a doctor to make an “independent” medical assessment of the claimant’s condition even after your own doctor has assessed you’. 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 ===
=== 5. ICBC Private Investigators ===
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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.  
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 ==
== F. Plaintiff's Duty to Mitigate ==
 
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 ===
The plaintiff has a duty to mitigate his/her injuries after an accident.  Generally, this means following your doctor’s instructions so that recovery from any injuries is as quick as possible.  Failing to follow your doctor’s instructions can aggravate the injury and prolong recovery, thus increasing expenses.  If this is the case, ICBC will argue that your failure to mitigate and speed up the recovery should decrease the amount of money to which you are entitled.  This occurred in ''Rasmussen v Blower'', 2014 BCSC 1697, , where the plaintiff was counselled to do physiotherapy and massage, but only attended one appointment of each.  The trial judge stated that the plaintiff should have shown more perseverance and given time to allow the medical treatments to work.  Due to the plaintiff’s failure to mitigate, the trial judge reduced the plaintiff’s award by 20%.  


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.
If you find that you are unable to afford certain treatments that are mandated, you should apply for coverage through Part 7 (no-fault) benefits (see Part II.C). A judge will not take a failure to apply for these benefits as an excuse for not continuing with treatment (''Rasmussen v Blower'').


== G. Which Court has Jurisdiction? ==
== G. Which Court has Jurisdiction? ==
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The Supreme Court of British Columbia is governed by the ''Supreme Court Civil Rules''.
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.   
Actions for damages over $25,000 (effective September 1, 2005) come within the jurisdiction of the Supreme Court of British Columbia.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 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.  
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===== (3) Reserving a Trial Date =====  
===== (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.  
After the Response to Civil Claim is filed, the parties will reserve a trial date. The trial date usually falls approximately two to two-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 =====
===== (4) The Examination for Discovery =====
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==== a) Non-pecuniary Damages ====
==== a) Non-pecuniary Damages ====


Non-pecuniary damages are awarded to '''compensate''' the claimant for pain and suffering, loss of enjoyment of life, loss of expectation of  life, etc. In 1978, the Supreme Court of Canada placed a cap of $100,000 on awards for non-pecuniary damages in ''Andrews v Grand & Toy Alberta  Ltd.'', [1978] 83 D.L.R. (3d) 452 (S.CC). This means that the limit for this head of damages after adjusting for inflation, is now about $350,000.   
Non-pecuniary damages are awarded to '''compensate''' the claimant for pain and suffering, loss of enjoyment of life, loss of expectation of  life, etc. In 1978, the Supreme Court of Canada placed a cap of $100,000 on awards for non-pecuniary damages in ''Andrews v Grand & Toy Alberta  Ltd.'', [1978] 83 D.L.R. (3d) 452 (S.CC). This means that the limit for this head of damages after adjusting for inflation, is now about $360,000.   


==== b) Loss of Prospective Earnings ====
==== b) Loss of Prospective Earnings ====
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