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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 23:38, 19 June 2016
, 23:38, 19 June 2016→H. Damages
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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. | 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: | The major heads of damage are as follows: | ||
==== 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. | |||
==== b) Loss of Prospective Earnings ==== | |||
12- | Loss of prospective earnings is the capitalized value of the claimant’s loss of income from the time of the accident to the claimant’s projected date of retirement. The capitalization rate will be calculated by using present rates of return on long-term investments, and an allowance will be made for the effects of future inflation. In determining the value of prospective earnings, the claimant’s earning capacity over his or her working life, prior to the accident, will be evaluated. In a claim for the capitalized value of lost prospective earnings, the defendant will seek to reduce that amount by introducing evidence of future contingencies. | ||
In calculating loss of prospective earnings, the figure that is used is the loss of Income Net of Taxes, as opposed to Gross Income Loss under Part I, s 2.1 of the IA. This applies to any unintentional accidents that occur after June 17, 1997. This amendment was brought into force on October 1, 1997 by Orders in Council numbers 949 and 1080. | |||
==== c) Cost of Future Care ==== | |||
Cost of future care is the cost of the claimant’s future care over his or her expected life span. As with loss of prospective earnings, cost of future care is capitalized and reduced for contingencies. | |||
==== d) Special Damages ==== | |||
Special damages compensate the claimant for expenses like drugs, crutches, orthopaedic shoes, and artificial limbs. Claimants should keep every document, receipt and bill that relates to their accident. The claimant must have the originals to be reimbursed. | |||
=== 3. Lump Sum Awards and Structured Settlements === | |||
Damages can be paid in a lump sum or through a structured settlement. A structured settlement is an arrangement where the damages to which a claimant is entitled are left under the control of the insurer. The insurer enters an annuity contract with the claimant and agrees to pay that claimant a certain income for a set period of time. Structured settlements are often recommended in infant cases and cases where the claimant has a mental disability or infirmity. In rare cases, a court imposes a structured settlement. | |||
Structured settlements are worth considering if the amount of the principal settlement exceeds $50,000 to $100,000. These arrangements offer advantages for the claimant and the insurer. One advantage for the claimant is that the interest gained on that settlement is not taxable. The claimant therefore gets much more money than if he or she took the lump sum and invested it. Another advantage is that the claimant does not suddenly come into a large sum of money and run the risk of spending it foolishly. The advantage to the insurer is that the Corporation doesn’t have to pay out all of the money at once and is entitled to derive income from it. | |||
Structured settlements can be set up through a number of licensed dealers in British Columbia. Various options are available. For example, the claimant could receive a lump sum every five years, an indexed monthly sum, a monthly sum that decreases over the years, or a monthly sum and periodic lump sum payments. Most dealers do not charge for providing projections of the various income streams and the costs associated with them. | |||
== I. Costs == | |||
In addition to the claim for damages, the claimant should claim costs. Courts award costs as crude compensation for the costs of pursuing the claim. Costs are calculated or assessed on the basis of a tariff set out in the ''Supreme Court Act'', RSBC 1996, c 443. They do not fully compensate the claimant for the cost of pursuing the litigation but go some distance toward paying for the disbursements and a portion of the legal fees charged by the lawyer. Claimants in Small Claims court can claim “expenses” but not counsel fees. | |||
== J. Reaching a Settlement Before Trial == | |||
=== 1. Negotiation === | |||
Following the discovery, defence counsel will write a detailed reporting letter to the adjuster making recommendations about a settlement. The adjuster will present the defence counsel’s recommendations to ICBC, which may or may not accept them. Upon reply, defence counsel will inform the claimant’s counsel of ICBC's position. If the claimant is unwilling to settle, the claimant’s counsel may contact the adjuster and submit a counter-offer. This process will likely be repeated several times. These types of negotiations are expensive, time consuming, slow, and frustrating. | |||
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