When you make a claim for personal injuries against another person you soon enter the world of civil litigation. Like any journey into new terrain it is helpful to have some insight into those you are likely to meet along the way, as well as some knowledge of the local language.
This article is an attempt to provide both but let’s first start with the very basic anatomy of a personal injury claim which is what got you here in the first place.
It has three components:
- An event occurs that causes an injury
- The event must be caused by some one else doing something wrong
- A loss must flow directly from the injury
If you fell down because of your own clumsiness and hurt your knee only component number one is present, so no personal injury claim.
If you fell down because someone else forgot to shovel the snow off the sidewalk, and while you banged your knee nothing came of the trauma, you have only component two. Still no personal injury claim.
If you fell down because someone else forgot to shovel the snow off the sidewalk, and tore your good pants, hurt your knee, missed a day from work because of the knee injury and your doctor has told you that you will have to buy some anti-inflammatory medication for the next six months in order to get better, you now have all three components to a personal injury claim. You sustained an injury in an event caused by another person doing something wrong, and a loss flowed directly from the injury.
You would be eligible for compensation for the pain and suffering, the income loss for the day of work missed and the cost for the medication yet to be purchased as well as the replacement of the pants. The guy that was supposed to shovel the driveway but didn’t is obligated to compensate you for these losses.
Compensation comes in the form of money. That money is referred to as damages. Damages are broken down into categories called heads of damages. In this example, money for pain and suffering is called non-pecuniary damages, the amount of the short fall on your paycheque is income loss, the cost of the
Here I am using the term injury to mean damage to the physical and/or emotional person
medication is called future care costs, and the cost of the pants is covered under the heading special damages.
There are other heads of damages not specific to this example such as Loss of Capacity to Earn Income and Loss of Housekeeping Capacity, In Trust claims etc. See my article “FAIR SETTLEMENT OF ICBC CLAIMS – AN ANALYSIS OF QUANTUM” for details.
In fatal accident claims there are a whole other set of heads of damages which include Loss of Financial Dependency, Loss of Valuable Services, Loss of Care Guidance and Affection, and Loss of Inheritance. See my article on fatal accident compensation for a complete discussion.
That’s the theory. But theoretical rights are not much good without a practical resolution. If the person who forgot to shovel the driveway had no money to pay you then you still have no compensation. So where does the money come from?
Sometimes a small moment of inattention can lead to catastrophic consequences. Most car accidents occur that way. The catastrophe however is not just for the injured person. Without insurance the negligent operator of the vehicle could lose the family home and their life savings satisfying claims made against them. Fortunately most people elect to buy liability insurance for their homes and businesses and in fact are compelled by law to purchase it for their vehicles. Ultimately, this web of liability insurance provides a reliable source of compensatory funding for a great deal of the accidental misfortune that occurs within our society.
I’ll tell you more about liability insurers in a minute but first some definitions.
Liability simply is a word meaning an obligation to pay. It can arise from a contract or a tort.
Special Damages are defined in this context to mean specific out of pocket expenses, generally documented by receipts
Where the residual effects of the accident injury present a real and substantial possibility of an income loss in the future
where the residual effects of the accident injury result in a reduced ability to maintain your household, — housekeeping and home maintenance are examples of such activities
In Trust claims are amounts of money awarded to the victim that they can use at their discretion to discharge any feeling of obligation to family members or others who may have gone above and beyond the norm to assist them in their time of need
a legally enforceable agreement between two or more parties
An example of a contractual liability is a telecom contract. When you sign up for the ‘free’ phone and cel service for 36 months you have obligated yourself to pay the provider a certain amount every month for three years as per the terms of the contract. You may find that if you want to switch part way through the contract to another service provider, you will have to pay out the remaining months of the contract, even if they no longer provide you with services. You’ve incurred liability by way of contract to pay a certain monthly amount for a fixed number of months. Depending on the terms of the contract (that fine print you don’t read because you have to sign the contract anyway to get the ‘free’ phone) whether or not you want to continue receiving the benefits of the contract at a later time doesn’t affect your continuing liability to pay the monthly fee.
Torts come in many shapes and sizes. Assault, false imprisonment, defamation are all examples of how one person can do another wrong. The person who assaults or falsely imprisons or defames is referred to technically as the tortfeasor.
One of the most common wrongs, or torts encountered in the world of civil litigation is negligence. The negligent operation of a motor vehicle as in following too closely and rear ending the vehicle ahead is a common example of the tort of negligence. Negligence resulting in injury, whether it involves a car accident, food poisoning, improperly maintained premises or sidewalks, professional negligence, dog bites, slip and falls or other events, is the one I specialize in.
A contract of liability insurance is a written agreement between two entities about liability to others. In the case of a BC motor vehicle situation it is made between the owner of a car and ICBC. The owner is the first party to the contract. ICBC is the second party. The essence of the contract is that if the first party incurs liability the second party to the contract, ICBC, has to protect the first party from the claims made by the victim. The victim is referred to as the third party.
Getting back to our slippery sidewalk example, the sidewalk owner calls his insurance agent and the next thing you know an adjuster has phoned you to set up an appointment to talk to you.
a wrong done by one person to another that gives that other person a right to sue for compensation
tortfeasor is just a fancy word for wrongdoer
negligence means not being reasonably careful, that is doing something that one ought not to do, or not doing something that one ought to have done
A claims professional employed either directly or indirectly by a liability insurer for the financial management of one or more claim files
This is good news and bad news. The good news is that there is actually a pool of money available to compensate you and that someone with access to it is willing to talk to you. The bad news is that ultimately they will only want to pay you the minimum that they are legally obliged to pay, even though from your perspective as the victim it may not be enough to properly compensate you for what you have lost.
In any negotiated settlement, whatever the amount decided, the basic deal is that the victim signs a written contract to officially say that they will never claim further for a particular incident in exchange for which the insurer writes a cheque for the agreed amount.
In the case of the car accident, which is more common than the ‘slip and fall’, the claiming process is a bit different but the situation is the same.
Because ICBC insures almost everyone in BC, the process of introducing insurance money starts with a well known standard ICBC procedure. It’s the same for any claim situation, from broken windshield to severed spinal cord. You call Dial-A-Claim and immediately your claim is referred to a task specific ICBC employee in their claims division.
This is handy, and may even be vaguely familiar from the windshield claim you made five years ago. But it is important for you to keep in mind that while there is a big difference between fixing your windshield and fixing your body the deal remains the same, ICBC pays money in exchange for your release of claim, and as with any liability insurer, they only want to pay the minimum required to get you to sign that release.
A question I often get asked by victims of car accident claims in particular is how can it be that ICBC, a publicly owned, crown corporation, whose primary reason for existence is to administer a universal system of automobile insurance, my insurance company, can offer less than what I as the victim feel is adequate settlement money?
To answer that question you need to be aware of two things.
The first is that the final decider of the value of any personal injury claim, short of a negotiated settlement, is a civil court. Not you. Not ICBC or any other insurer. That court operates within a civil litigation system that is an accumulation of decisions and statutes created over the entire history of BC and Canada, and in some instances, all the way back to the original inventors of our civil law system, the English.
It attempts to impartially (and therefore impersonally) set standards of conduct, and through their application, arbitrate between competing interests in all non-criminal activities of all entities and persons active in our society at all times. Those activities and entities range from an alleged breach of a sales contract involving a used car dealer to the death of the bread winner through the negligent operation of a motor vehicle driven by your grandmother.
Looking at it this way you can appreciate how it can get complicated and how there may be many potential outcomes to a trial that technically can be deemed as “fair”.
The color of civil litigation is neither black nor white, it’s 50,000 shades of gray.
The second thing to remember is that because ICBC insures everyone for everything related to the use and operation of a motor vehicle in BC and in some cases, anywhere in Canada and the U.S., they have two distinct, injury related roles, liability insurer and Accident Benefits insurer.
In the case of you being injured in a motor vehicle accident ICBC is acting mainly as the liability insurer for the motorist that caused your injury. In that situation then, ICBC is in same essential position as the insurer of the guy who forgot to shovel his driveway. ICBC’s primary obligation is to the person that bought the liability insurance not to the person claiming against the person that bought the liability insurance. ICBC is therefore negotiating with its assessment of potential trial outcomes as the defendant’s insurer in mind, not from yours as the accident victim.
That is why, when Joe Blow rear ends you, you wind up never seeing Joe again. Instead you deal with someone at ICBC. That’s why, at this point, they are not your insurance company.
It can be confusing though, for more reasons than the fact that it was ICBC that you paid your premium dollars to, and who maybe fixed your windshield in the past. As noted earlier, part of what you bought, when you renewed your own vehicle insurance, or was paid for in other ways to ICBC, was “no fault” Accident Benefits coverage. Its automatic on all policies so you won’t remember asking for that coverage specifically. When you are injured they then have to engage you to administer benefits that may be due.
Operationally, when you make a claim, ICBC often uses the same employee to manage both the tort claim on behalf of the guy that rear ended you and your contractual claim to Accident Benefits coverage.
Accident Benefits are a set of benefits for payment of medical expenses in recovery and rehabilitation together with some minimal wage indemnity coverage available to almost everyone in BC injured in a motor vehicle accident. These benefits come by way of contract not tort, hence the term No Fault Benefits
Consequently ICBC will want you to sign away all your rights to medical and employment confidentiality as a term of the Accident Benefits coverage but will then use the information they obtain to assess both your Accident Benefits claim and the tort claim. If you retain me as your legal counsel, I will ensure that ICBC only gets what is necessary to be provided under the Accident Benefits coverage and the rules of Court pursuant to your tort claim.
Also, if you deal directly with ICBC they often will also obtain assessments by medical experts that are independent of a medical practitioner’s usual obligations inherent in the treatment of patients. Unlike your general practitioner, or orthopedic specialist or other medical person involved in your actual treatment, the ‘independent’ medical examiner’s sole purpose is for provision of a medical opinion to be used in the assessment of your legal claim for injury. This is by definition then independent of treatment considerations and responsibilities.
Often those assessments, while scientific and professional, will be done from the perspective of the insurance company as opposed to that of the accident victim. By definition, the entity whose contractual obligation to protect the interests of the tortfeasor, and who is ultimately required to fund the settlement, always has a different perspective from the person who personally experiences the loss. You will not be in a position to introduce balancing medical – legal opinion unless you are represented by counsel. My job as your lawyer is to keep the playing field even in this and many other respects.
The person that represents the insurance company comes with different titles. At Dial-A-Claim, you will be in contact with a Customer Service Representative. Once the injury potential is known, you will be passed on to an adjuster or an examiner or an ‘independent adjuster’.
Adjusters and Examiners are people employed directly by ICBC to provide the first level of file management. ICBC is hierarchical. They have to be. They are not spending their own money. They are spending money that they have collected from all of us as premiums, under the trust condition that they distribute most of it back out as compensation. As such there has to be oversight to ensure that the money is being properly applied to that Corporate purpose.
This is accomplished at ICBC by assigning various levels of supervision to the oversight of each claim file and to all claims generally. This process of oversight is accomplished by providing different levels of decision making employees (enter the various Clams Managers) with different levels of authority to spend money.
Claims that can be settled at a minimal level may be within the authority of the adjuster you deal with and may done without management involvement at the time of settlement. The next level of settlement amount will require the next level of supervision. At some level, only a committee of managers can provide settlement authority.
Sometimes liability insurers, including ICBC, will use a trained claims professional employed by a service provider to assist them in doing field work. This person then is employed by ICBC or other liability insurer, as a contractor on a file by file basis, and is referred to as an independent adjuster. As with independent medical examiners, independent does not mean impartial, it is a reference to being arm’s length. For the medical professional it is arm’s length to treatment obligations, for the independent adjuster, it is independent of the benefits and obligations to maintain employment that comes with unionized, directly employed claims people.
The main thing that’s important for you to understand about the structure is that, unless your claim is of the very minor nature, you never actually meet the person or persons making the decisions on your file. That means that there is really very little advantage in establishing a relationship with the adjuster. That person may become an ambassador to the real decision makers but these days ICBC makes initial decisions about individual files from a Corporate view and doesn’t often look at a file realistically until they are convinced a trial is a real possibility. Hiring a lawyer tells ICBC: “not necessarily trial but trial if necessary”, to coin a phrase.
So far I’ve referred to some specific examples of how I can help you as a lawyer but let’s talk about what legal representation generally brings to the situation you find yourself in.
It’s not about greed and it’s not about fear. It’s about balance. In terms of resources and civil litigation expertise you are seriously outgunned by ICBC or any other liability insurer. In terms of mandate, the competing perspectives of both the liability insurer and yourself as the claimant are equally legitimate, but as I’ve already noted, very different. Achieving a fair settlement is bringing the appropriate balance to those differing perspectives. To do this you need a legal professional to augment your own resources and knowledge in achieving a fair settlement.
Also it’s worth noting that just because you hire a lawyer, does not mean that you have to go to trial. Most claims are settled at the negotiation table rather than tried in a court of law. That is because the trial process is slow, expensive, risky, and well, …. trying, for all parties.
Because parties relying on a trial result, (as opposed to one they can agree upon between themselves), give up their right to make a decision on the final settlement and pass that right on to a judge, or a jury, it is absolutely essential that the information a trier of fact uses to make the decision is presented fairly and reliably. There is an extensive written code regulating how evidence in a case can be developed and ultimately, be presented to a trier of fact. It’s called the Supreme Court Rules.
One of the things I learned at law school, and in hard experience afterwards, was how to apply those rules so that my client has his case presented to the trier of fact in the most advantageous manner. But what I really want you to appreciate right now is that the process of developing, preserving and ultimately presenting that information at trial begins the moment the accident happens. The sooner you have your legal expert involved the more likely that the case will be properly prepared and you will be in the strongest position to negotiate your settlement or if necessary, get it resolved in court. Your Legal Butler is only as far away as your phone. Call me at 604-318-383 today.
