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ICBC Injury Claims: What is my Pain and Suffering Worth?

Posted on Thursday, November 12th, 2015 by:

Pain & Suffering Claims in B.C.

In the ten years I have been practicing personal injury law, I have often been asked by my clients during our initial consultation; “So… what do you think mycase is worth?” My response is usually; “I don’t know.” And my thoughts often turn to snowflakes. Why snowflakes? Perhaps a brief explanation of the law is in order before I answer that question.

Different types of awards

“So… what do you think my case is worth?” is an impossible question to answer at the initial visit with a client as there are months, sometimes even years of medical and financial information to review in order to form an opinion to answer such a question. Furthermore, there are different types of awards that a particular case may or may not attract.  The easier evaluations are those that involve figuring someone’s past wage-loss or future wage-loss or their out-of-pocket expenses. These types (or “heads”) of damages are known as pecuniary damages. We simply crunch some numbers we get from tax returns, or punch cards, or receipts and we come to a total. What is more difficult to calculate is the non-pecuniary, or general, damages portion of our clients’ claims.

Non-pecuniary Damages vs Pain & Suffering

The term non-pecuniary damages (or general damages) is something that is unfamiliar to most Canadians, as most of us are more familiar with the American term “pain and suffering”. So how do we as lawyers calculate an appropriate sum of money for someone’s pain and suffering. The easy answer is that we try to find similar cases that have gone before the courts, where non-pecuniary damages have been awarded. However, this is often a difficult task as there are no two cases exactly alike. It would be like trying to find two snowflakes that are alike. It is impossible! So what we do is try to find cases that are as similar as possible to each of our clients’ claims. So what do we look for?

What we look for

Before we head down that road of what to look for, we first need to understand the underlying reasoning behind awarding money for pain and suffering. In Lindal v. Lindal, 1981 CanLii 35 (SCC), the Supreme Court of Canada stated;

“… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation… An award will vary in each case “to meet the specific circumstances of the individual case”

Simply put, we cannot simply compare the type of injury our clients sustain in the accident and look for similar injuries that courts have been asked to examine in the past, and then advise our clients, for example; “since the courts have awarded x for a broken arm in the past, the broken arm you sustained in the accident is also worth x.” A broken arm to someone who is 60-years-old is likely more limiting to him or her than it is to a 16-year-old person. Equally, a broken arm to that same 60-year-old person is likely going to take more time to completely resolve than that of a 16-year-old person.

Specific circumstances

Clearly, awarding the same compensation to both individuals in our scenario would be greatly unfair. The analysis must go beyond the type of injury sustained, we must take into account the age of the injured person, the duration of injury, and the impairment of the injury on the individual’s life, to name a few of the “specific circumstances of the individual case” mentioned by the Court in Lindal v. Lindal.  The B.C. Court of Appeal in the case of Stapley v. Hejslet 2006, BCCA 34 (CanLii) provided an inexhaustive list of “specific circumstances” of each case the courts must examine when determining an appropriate award for non-pecuniary damages. They are;

10 factors set out by the B.C Court of Appeal

  1. Age of the Plaintiff;
  2. Nature of the Injury;
  3. Severity and Duration of pain;
  4. Disability;
  5. Emotional suffering
  6. Loss or impairment of life
  7. Impairment of family, marital and social relationships;
  8. Impairment of physical and mental abilities;
  9. Loss of lifestyle; and
  10. The Plaintiff’s stoicism  

These ten factors set out by the B.C Court of Appeal are the guidelines that we as lawyers must use in order to find cases that are similar to our own clients’ particular case (and this is for each individual client), to form an opinion as to the “value” of their “pain and suffering.” We’ll never find a case that is exactly the same as to the specific circumstances of our client’s claim.

Importance of Passage of time

Furthermore, Things like the duration of pain, impairment of life, emotional suffering, loss of lifestyle, and impairment of family, marital and social relationships can only be determined with the passage of time. Therefore, the more time passes for each particular case, the better position that we, as lawyers, are in to form an opinion as to the value of each client’s pain and suffering. Again, using our snowflake analogy, allowing the water to freeze first and ultimately transform into a snowflake, which can only happen with the passage of time, puts us in a better position of knowing what to look for when trying to find similar snowflakes.

“So… what do you think my case is worth?” is a question that is impossible to answer with any accuracy without first knowing all “specific circumstances” of your case, which in many situations can only be determine with a significant passage of time.

Contacting our Personal Injury Law Firm

If you have a personal injury or were injured in a car accident, we will meet with you to discuss your claim and your rights — with no obligation for you to hire us. Contact our Vancouver Personal Injury Law Firm for a free consultation.

Call us at 604-568-9444 or toll free at 1-855-ICBC-LAW.

BC Hit and Runs: Making an ICBC Claim

Posted on Tuesday, November 3rd, 2015 by:

What is a Hit and Run?

A hit and run is when an unknown driver damages your vehicle or injures you but leaves the scene of the collision.

Fortunately, anyone involved in a hit and run in BC has the right to seek compensation for a hit and run directly from the Insurance Corporation of British Columbia (ICBC).

ICBC is able to provide coverage up to a total of $200,000 for anyone who is injured, or whose property is damaged, by a hit and run in BC, if the hit and run occurs on a “highway” in B.C.  It is important to note that it is not necessary for your vehicle to be actually “hit”.  It may be a scenario where your vehicle is simply “cut off” which causes your vehicle to be involved in a collision.  (If you are involved in a hit and run in an ICBC insured vehicle while in the United States there does exist a requirement that you be involved in a “physical” collision with the hit and run vehicle).

Compensation rights for victims of hit and runs in BC

Section 24 of the Insurance (Vehicle) Act creates certain compensation rights for victims of hit and runs.

24(1) If bodily injury to or the death of a person or damage to property arises out of the use or operation of a vehicle on a highway in British Columbia and

  1. the names of both the owner and the driver of the vehicle are not ascertainable, or
  2. the name of the driver is not ascertainable and the owner is not liable to an action for damages for the injury, death or property damage,

any person who has a cause of action

  1. as mentioned in paragraph (a), against the owner or the driver, or
  2. as mentioned in paragraph (b), against the driver,

in respect of the bodily injury, death or property damage may bring an action against the corporation as nominal defendant, either alone or as a defendant with others alleged to be responsible for the injury, death or property damage, but in an action in which the names of both the owner and the driver of the vehicle are not known or ascertainable, recovery for property damage is limited to the amount by which the damages exceed the prescribed amount.

Conditions of section 24

The conditions of section 24 are as follows:

  1. The loss must have occurred on a highway in BC. The definition of highway includes:
    1. All public streets, roads, trails, lanes, bridges, trestles, tunnels, ferry landings and approaches, and any other public way;
    2. Every road, street, lane, or right of way designed or intended for or used by the general public for the passage of vehicles; or
    3. Every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited.
  2. The bodily injury, death, or property damage must have arisen out of the “use or operation of motor vehicle;” and
  3. The names of the owner and driver must not have been ascertainable, or if the owner is not liable, the name of the driver must not have been ascertainable.

The first and second conditions are usually the easiest to satisfy, whereas the third condition is the hardest.

The first condition includes almost any space intended for vehicles, including alleys and right of ways, and private property to which vehicles have access or are invited (i.e. parking lots).

The second condition, use or operation of a motor vehicle, also covers a broad range of accidents, including accidents where:

  • Another vehicle collides with your car, but the other driver leaves the scene before you can get their name, driver’s licence number or vehicle’s licence plate number.
  • You return to your car after leaving it unattended in a parking lot and see it has been damaged by another vehicle — but no one has left a note explaining what happened and how to contact them.
  • As a pedestrian or cyclist, you are hit by a driver who doesn’t then stop.

The third condition requires that the other driver must not be identifiable. This means that you are responsible for taking all reasonable steps to identify the driver or the vehicle. This usually includes:

  1. Attempting to get identification from the other driver if he/she stops;
  2. Attempting to record the plate number if it is visible;
  3. Getting contact information of any witnesses;
  4. Calling the police immediately;
  5. Reporting the accident to ICBC as soon as possible; and
  6. Posting signs, asking nearby residents or businesses if they saw the accident and potentially placing advertisements in the newspaper or online such as on popular websites like craigslist.

All these steps need to be taken as soon as possible.  What is “reasonable” steps to ascertain the identity of the unknown driver will depend on the circumstances.  Steps must be taken at the scene (if possible) and afterwards.

What to do in Event of a Hit and Run?

There are very important obligations and limitation periods that must be followed in the event of a hit and run. The following is a list of some of the steps that are vital to the success of your claim.

  • Take all steps possible to identify the driver of the responsible vehicle such as their name, license plate number, description of the vehicle, description of driver, etc.
  • Call the police and report the accident immediately if possible, and preferably within the first 24 hours of the accident. Provide the police with all the information you have regarding the other driver and vehicle, as well as the time and location of your accident.
  • Report your claim to ICBC by calling ICBC’s Dial-a-Claim at 604-520-8222 in the Lower Mainland or 1-800-910-ICBC (4222) toll-free throughout the rest of B.C.
  • Provide written notice of the hit and run to ICBC as soon as you can and no later than six months after the accident. Failure to do so could result in your claim being denied.

How To Contact Our Personal Injury Law Firm

If you have a personal injury, speak to a personal injury attorney about your claim, contact us online or call us at 604-568-9444 or toll free at 1-855-ICBC-LAW.

Many people in BC do not know their rights when it comes to ICBC claims and especially hit and run claims and often wait too long to speak to a personal injury lawyer. If you or someone you know was injured in a hit and run accident, please contact us to schedule a free consultation. We will meet with you to discuss your claim and your rights with you with no obligation to hire us.

 

Making a Claim for Dog Bite Injuries in British Columbia

Posted on Tuesday, November 3rd, 2015 by:

Getting Dog Attack Compensation in BC

Have you been bitten or attacked by a dog in BC? If so, you may be entitled to compensation from the dog owner. Typically, owners of dogs have a home insurance policy that provides coverage to the owner in the event of a dog bite injury even if the incident occurs outside of the owners property, for example at a park or while out on a walk.

Potential to change one’s life forever

Dog bites and attacks may not seem as serious as car accidents; however, they have the potential to change one’s life forever. Dog bites can result in life-changing injuries and in some cases, disabilities such as permanent scarring and numbness due to nerve damage. The impact of attacks can also cause victims to suffer from emotional trauma, such as post-traumatic stress disorder, and even loss of income.

Law in BC, the “one bite rule”

The law in British Columbia on dog bites is based on the “one bite rule”. This mean that a person who has been injured as a result of a dog bite will only succeed in a lawsuit against the dog owner if the owner knew or had reason to know that the dog was likely to cause that kind of injury. If a dog has bitten before or has displayed vicious behaviour, such as growling or lunging at people without provocation, then the owner is to be “on notice” from that moment on that the dog is dangerous, and will be liable if the dog later causes injury to someone.

Suing the dog owner for compensation

You may still be successful in suing the owner for compensation arising out of your dog bite injuries in cases where the owner of the dog isn’t liable under the “one bite rule”. Dog owners may still be liable for being negligent in situations such as unreasonable lack of care and attention in controlling the dog. This can include situations where the dog is not kept on a leash in places other than off-leash designated areas or left to run at large.

What to do after a dog attack in BC

Before you seek legal advice though it is important that you seek medical attention and advice regarding rabies treatment and infections. It is also important that you report the incident to your local animal control office. Look up your city’s animal control office and provide them with as much detail as possible. It is imperative that you do so to not only allow the animal control officers to investigate the incident and contact the owners but also to prevent other potential attacks.

How To Contact Our Personal Injury Law Firm

If you have been injured as a result of a dog attack in British Columbia,  please contact our office to speak to a personal injury lawyer about your claim.

Contact us online or call us at 604-568-9444 or toll free at 1-855-ICBC-LAW.

Why Call a Lawyer Before Calling ICBC

Posted on Friday, April 17th, 2015 by:

Ensure Your Rights are Protected & You Get a Fair Settlement

I quite often advise clients to ensure they have a lawyer for their ICBC or personal injury claim to ensure all of their rights are protected and they receive a fair settlement.  I tell them not to talk to ICBC before they get legal advice.  After all, consultations are free and personal injury and ICBC lawyers work on a contingency basis.

Free Consultations & Contingency Fee

This means if your lawyer doesn’t get a settlement, there aren’t any legal fees. In addition, by having a competent personal injury lawyer you will receive a far greater ICBC settlement amount even after legal fees are paid.  I usually go over the reasons why in the initial consultation along with explaining the injured person’s rights, options, how claims work, and how injury claims work when you have a lawyer.

Why Everyone Should Speak to a Lawyer Before Settling with ICBC

Yesterday, I received an email from a potential client who had contacted our firm last year.  She didn’t retain us at the time and ended up settling her claim herself even when she was still suffering from her injuries.

Here is what she wrote to me (edited to protect privacy):

I contacted your firm last year regarding a claim I had with ICBC. I ended up settling as I wasn’t working very much and really needed the money. My injury wasn’t healed and I had requested to have my physio paid until I was healed, they declined the offer but said they would continue paying the physio for one month after I had settled. I am currently working full time but am having so much pain every day. I was wondering if there are ever cases that get reopened by ICBC or if it’s a done deal?

I answered her question this way:

Unfortunately, in your circumstance, once you have settled and signed a release, there isn’t anything that can be done.

This is why I always recommend to clients to hire a lawyer to ensure your rights are protected and you receive a fair settlement.  Hiring a lawyer doesn’t necessarily mean your case will be delayed or that a lawyer will take half your settlement.  This isn’t true.  We never recommend to clients to settle when they are not yet healed and there are a lot of options to help someone financially if that is the reason they want to settle quick.  Settling quick is never a good idea.

Legal Advice for Any Injury Claim

The best advice I can give if you have an injury claim either with ICBC or any other insurance company, is to seek legal advice from a lawyer that specializes in the area of personal injury, who doesn’t represent ICBC or insurance companies and only injured people, and finally someone who has extensive trial experience.

Contacting our Personal Injury Law Firm

If you were injured in a car accident, contact our Vancouver Law Firm for a free consultation. Call us at 604-568-9444 or phone us toll free at 1-855-ICBC-LAW.

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