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Author:Blake Cooper

personal-injury

Personal Injury Basics: Fault Matters – no matter what the other driver tells you

As we know, fault is the name of the game in compensation for civil personal injury claims.  If you want damages for something (such as for your injuries suffered in a car accident), you have to show why the other party involved caused you to suffer a loss.  Just being hurt is not enough.  Causation is key.  Entire trials are run just to determine who caused what damage, separate and apart from determining what the damage actually is.

If you are stopped at a red light and the evidence is that you were rear-ended by a speeding driver, your legal position is obviously very strong, and any damages you can prove will be easier to demand from the other side during litigation or settlement negotiations.  But if the evidence is that you were the careless driver, then don’t expect ICBC to pay much for your injuries that resulted from the crash.  They will say that you were the author of your own misfortune.      

But those are extremes.  Fault is often the subject of debate – such as in cases where the car accident is the result of a left turn or a lane change.  In cases like these, legal fault is less clear and it’s the discovery of all the facts that governs the outcome of the case.  For example, it would be important to know things like, how fast was each car going?  Are there any witnesses who can advise on how the accident took place?  Is there any video showing the accident?  Which motorist is worthy of blame for the accident?  Or, if both of them are, which motorist is worthy of more of the blame?  At trial, if the court rules that the plaintiff driver is 25% to blame for the accident and the defendant 75%, then obviously the plaintiff can only be awarded 75% of the value of his or her proven damages.

Sometimes a person might say, “I was in an accident.  But the other driver came up to me after the crash and kept apologizing, so he should be at fault.”

Not so fast.  While the testimony of what witnesses will say can be evidence of some things, the law will not allow apologies to be evidence of fault.  It’s codified in a statute called the Apology Act.  The court will not care about who apologized for what after an accident, no matter how polite the defendant was at the scene.  The court will want evidence of facts respecting how the accident took place.

So fault matters.  The exception is when you are trying to obtain accident benefits under your insurance contract with ICBC – such as payment of reasonable medical expenses.  Those benefits are generally payable regardless of who caused the accident.  They are also known as “no fault” benefits.   

If you are injured in a car accident, tell us everything about how it took place.  Contact us and we’ll advise on the nature of your claim.

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ICBC Breach

False Statements and ICBC

“ICBC says I gave a false statement.  Can they breach my insurance?”

One way in which ICBC can treat you as being in “breach” of your auto insurance is if they think you provided a false statement.  For example, if you get into an accident but misrepresent the truth of what happened to ICBC, they may have grounds to deny you insurance coverage respecting any damages (to persons or property) that you have caused with your vehicle.

There are certain principles governing the definition of a false statement.  ICBC must prove that what you said was a “wilful false statement.”  They must prove that the statement was done intentionally, knowingly, and purposely, without justifiable excuse.  They must also prove that the statement was material to the management or payment of the claim by being capable of affecting the mind of the insurer, either in the management of the claim or in deciding to pay it.  The involvement of alcohol, for example, will likely be material to ICBC and affect the handling of a claim.

Not everything will constitute a false statement, however. A statement made carelessly, thoughtlessly, or inadvertently is not necessarily false. Same goes for if the insured who provided the statement had an honest belief in the truth of the statement’s contents.

Keep in mind that if you are involved in an accident, section 73 of the Insurance (Vehicle) Act Regulations requires the insured to provide prompt written notice of the circumstances of the accident. If you want advice on how to report an accident, contact the lawyers at Filkow Law.

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Personal injury damages

Personal Injury Damages

I got injured in an accident. What’s my claim worth?

The answer depends on two things: fault and damages. If you can prove the
other person caused the accident, then you will be entitled to damages. But
how much?

Again, it depends. There are different types of damages that may comprise a
personal injury claim. Some are valued quantitatively: i.e., on the
approximate monetary value of the loss (such as the income you couldn’t earn
as a result of your inability to work post-accident). Others are valued by
qualitative factors and what courts in previous cases have awarded in
similar circumstances. Here’s a summary of some common types of damages.

Wage loss. If the accident causes you to be unable to work for some time,
and thus suffer a loss of income, then you can claim for your net wage loss.
You can also claim for future wage loss if you can prove that your
accident-related injuries might harm your ability to earn income down the
road.

Lost housekeeping capacity and in-trust claims. You may have a claim if
your accident-related injuries prevent you from taking care of household
chores (such as doing laundry or shopping for groceries), or if someone has
to take special care of you because your injuries prevent you from caring
for yourself.

Special damages. These are any out-of-pocket expenses you incur as a result
of the accident or your injuries from it. Examples include taxi fare from
having to take a cab home from the accident scene, user fees for medical
treatment, or bus tickets because the accident prevented you from driving
yourself around town.

Future cost of care. If your injuries are going to require you to seek
specific medical care or treatment into the future, then you can claim for
it.

General damages. Also known as “non-pecuniary damages,” this is the most
common basis for getting paid in a personal injury claim. This is money
intended to compensate you for your pain, suffering, and loss of enjoyment
of life. There is no mathematical basis for calculating this number. Every
case is different, and valuing the measure of general damages requires an
analysis of many factors, including your age, the severity and duration of
your injuries (both physical and mental), and whether the accident causes
any disability. Your previous lifestyle is also relevant: if your injuries
impair your ability to enjoy recreational or social activities, or your
personal relationships with friends, family, or significant others, then
that will inform your general damages claim.

Note that damages can be hard to assess. When fighting over damages at
trial, the plaintiff’s lawyer argues why his or her client should be
entitled to the highest possible amount of damages, while the defendant’s
lawyer argues why the plaintiff should only get a fraction of that amount.
The defence may also argue why some damages shouldn’t be awarded at all.
The court then decides what to award.

If you negotiate with ICBC, expect them to pay you something for your
losses. But don’t expect the adjusters to assess the damages with your best
interests in mind. It’s not their job.

For advice on what heads of damages you might be entitled to after an
accident, call Filkow Law for an initial consultation.

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