Making a Personal Injury Claim (No. 188)

From Clicklaw Wikibooks

Getting injured in a motor vehicle accident is an awful experience. Learn your legal rights in the event you’re injured, and the steps involved in making a claim for “personal injury”.

Understand your legal rights

No-fault accident benefits are paid no matter who caused the accident

If you’re injured in a motor vehicle accident, there are two sources of compensation:

  • no-fault accident benefits
  • damages for losses if another person was at fault

Everyone in BC who owns a vehicle must buy basic insurance from the Insurance Corporation of British Columbia, called ICBC. This insurance pays no-fault accident benefits to almost everybody in BC who is injured in a motor vehicle accident — no matter who caused the accident.

Eligibility for accident benefits

Anyone who is in a vehicle licensed and insured in BC is eligible for accident benefits. So is a pedestrian or cyclist hit by a vehicle, if they or a member of their household has a BC driver’s licence or an Autoplan policy. The accident could occur in BC, elsewhere in Canada, or in the United States.

You must meet the conditions of the insurance to get accident benefits. For example, if you were injured while driving without a valid driver’s licence, or while racing your car, ICBC will not pay you any accident benefits.

Accident benefits are limited

No-fault accident benefits help with medical care and wage loss. They include rehabilitation and medical expenses, as well as disability benefits for workers and homemakers. For more details, see our information on insurance benefits and compensation for accident victims (no. 185).

Accident benefits only provide limited coverage. You may also be entitled to additional damages for losses caused by the negligence of others, explained in the next section.

Damages for losses if another person was at fault

If another person was legally at fault for (or caused) the accident, you can also be paid damages for your losses. There are several types of damages. These include:

  • damages for your pain and suffering (called “non-pecuniary” damages)
  • damages for your lost wages
  • damages for the loss of your future earnings if you can’t work because of the accident
  • damages for your future care

Your claim for damages is called a tort claim. A tort is a civil wrong committed by one person against another for which the law will give a remedy. The 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 an amount to resolve your claim

ICBC will typically offer you money to settle or resolve your claim — if it decides you were not at fault for the accident.

It is best not to settle your 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 tort claim, you can’t make any further tort claims related to that accident. 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 release of claims before receiving the settlement money.

Deal with the problem

Step 1. Make a claim to ICBC

To 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 report a claim online.

Tip

You must 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.

Step 2. See your doctor

If you’re injured, see a doctor as soon as possible. A doctor is in the best position to prescribe treatment, such as medication and physiotherapy. ICBC will then consider funding the treatment. (Be sure to keep all your medical receipts.)

Step 3. Consider ICBC’s offer on your claim

An ICBC adjuster will investigate the accident. They will make a decision about who caused it. The adjuster will also review your medical information and expenses.

ICBC will give you its decision about who is at fault. They may offer you money to settle or resolve your claim.

Take time to consider ICBC’s decision and its offer. You can negotiate with ICBC, making a counteroffer. You could do this yourself or have a lawyer do it on your behalf.

Tip

If you want an opinion about whether ICBC’s decision about who caused the accident or their offer is fair, see a lawyer for advice.

Step 4. Appeal ICBC’s decision or offer

If you are not happy with ICBC’s decision or their offer, you can use ICBC’s internal appeal process. You can appeal ICBC’s decisions on who is at fault, its settlement offer, its denial of your claim, or its treatment of you.

ICBC also has a fairness process you can try if you’re not satisfied with how they have treated you.

Step 5. Bring a legal action

If you 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 or tribunal. A judge or tribunal member can decide the matter without considering what ICBC decided.

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

  • offers less than you think is fair
  • decides you caused the accident and refuses to pay any damages
  • decides you’re partly at fault for the accident and reduces the damages by the proportion you’re at fault

You may also decide to sue ICBC if it refuses to pay you the accident benefits you are entitled to.

Tip

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 they may be in assessing your claim, are not looking out for your interests.

Common questions

What are the deadlines to sue?

The law in BC creates a time window to bring a legal action. In the case of an injury claim, that window (or “limitation period”) is two years. Once two years have passed after a claim is “discovered”, it’s too late to start a lawsuit.

The two-year period to sue for damages starts when you knew or reasonably ought to have known you suffered an injury.

If you were under the age of 19 at the time of the accident, the two-year period to sue for damages does not start to run until you turn 19.

In some cases, if you think a municipality is at least partly at fault for your losses from an accident, you must give them notice of your claim much sooner — sometimes within just two months of the accident date.

Where do I sue?

The amount you are seeking affects the choice of court you would sue in.

If you are seeking up to $5,000, you can file a claim with the Civil Resolution Tribunal. The tribunal is an online system designed for people to represent themselves.

For amounts between $5,000 and $35,000, you would sue in Small Claims Court. Many people represent themselves in this court. It’s less expensive and less risky than going to Supreme Court. See our information on Small Claims Court (no. 166 to 168).

For amounts over $35,000, you would sue in BC Supreme Court.

Tip

For motor vehicle accidents taking place in BC after April 1, 2019, injury claims up to $50,000 must be brought to the Civil Resolution Tribunal.

How much does it cost to sue?

If you’re suing for damages, you must pay your own lawyer. Most lawyers who handle personal injury claims accept cases on a contingency fee agreement. This means 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.

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 BC Supreme Court often don't go to trial because the parties 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 party reach a settlement agreement.

Can ICBC sue me?

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 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.


[updated February 2019]

The above was last reviewed for legal accuracy by Murray Wolf, McLarty Wolf, and Janet Mackinnon, ICBC.



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