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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)
Revision as of 22:55, 19 June 2016
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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. | 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 | 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 [[Foreword to Small Claims (20:I) | 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 [[Introduction to Workers%27 Compensation (7:I) | 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.). | |||
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