© Copyright 2021 by Tim Louis & Company Barristers & Solicitors
Negligent drivers are a fact of life. Their careless actions can easily cause injuries and emotional distress to other drivers. It is essential to understand the types of claims available if you are hurt through someone else’s fault. Commonly, personal injury claimants are entitled to non-pecuniary damages, past wage loss, future loss of income earning capacity and recovery of out-of-pocket expenses.
When you are injured as a result of another driver’s negligence, you are entitled to non-pecuniary damages. Simply put, this means monetary compensation for damage caused by pain, suffering and loss of enjoyment of life.
There are limitations or “caps” on the amount of money that can be awarded for non-pecuniary damages. The Supreme Court of Canada capped the monetary award for non-pecuniary damages in 1978. The limit was set, allowing for future inflation adjustments, at $100,000 for a personal injury suit. Currently, this cap is approximately $366,000 courtesy of inflation adjustments. This non-pecuniary damages cap applies to even the most severe injuries.
All non-pecuniary damage awards are analyzed to be sure the monetary amount is equivalent to the severity of the injury. The effects of your injuries are compared to previous, similar cases to assist in determining the appropriate measure recognizing that no two cases are identical. When using precedent, it is important to remember that no single example will be identical. A skilled personal injury lawyer is best qualified to locate the best comparable cases to maximize your claim of non-pecuniary damages. However, it is possible to search yourself using the judgment database on the government’s webpage. ICBC has its own legal researchers and routinely offers claimants much less than a skilled researcher will reveal is appropriate.
It might seem logical that if you are awarded a claim for past wage loss that the amount would be equivalent to the gross wages lost. Unfortunately, that is not the law. ICBC is only obliged to pay you the net amount of your lost income. Any no-fault wage loss benefits paid by ICBC to you will also be deducted from the amount of your past wage loss awarded. It is crucial to make certain that disability or sick day benefits received from employment insurance are not deducted from your past wage loss amount. It is not an amount that is typically deducted regardless of what ICBC tells you.
ICBC will likely attempt to minimize your award for past wages in other ways as well. It is common for ICBC to claim that you missed more work than was medically necessary or will take the position that more proof is required than the law mandates.
The law outlines that all income lost due to your injuries from the accident in question ought to be recoverable. The burden of proof lies only in proving that the injury prevented you from earning wages. The law does not mandate you report this income on your tax return for them to be compensable.
It is also important to factor in any raises or promotions you were scheduled to receive during the time you were out of work due to the accident. It is part of the law that any raises must be compensated for as part of your past wage loss claim.
In addition, your extended health provider will seek reimbursement from you for any long or short-term disability amounts you received. An experienced personal injury lawyer will help ensure this is handled smoothly and thoroughly.
If there is a real and substantial possibility that your injuries will lead to income loss in the future, you are entitled to compensation for future loss of income earning capacity. Recognizing that nobody can see into the future, the law provides many different ways of assessing the amount of your claim for future loss of income earning capacity.
An amount can be awarded under this head of damage even if you have returned to your pre-injury employment. An experienced personal injury lawyer will be aware of the recent state of the complicated law in this area and will be best able to assist in determining the most beneficial manner with which to assess this loss.
ICBC is notorious for minimizing such payments and even when amounts are proposed, they tend to be too conservative. If you are seeking future loss of capacity, it is in your best interest to have effective representation to succeed in this aspect of your claim.
Out-of-pocket expenses you incur as a result of your injuries are referred to as special damages by ICBC. You must provide evidence such as receipts for any and all out-of-pocket expenses pertaining to your injury. This can include anything from first aid supplies purchased at the pharmacy to travel costs for a doctor visit. These receipts can be submitted to ICBC for compensation.
It is vital to keep track of all miscellaneous purchases or expenses that pertain to your injuries. Keep the original receipts as evidence. It is also important to keep an accurate record of all medical or quasi-medical appointments that pertain to your injury. Keep a record of the name of the treatment provider, type of therapy received, expenses incurred to attend, and mileage to and from the appointment. Your personal injury lawyer can help you track and submit these expenses to ICBC so that you can be fully and properly reimbursed.
In addition, your extended health provider will seek reimbursement from you for any prescriptions and other expenses that were covered under your policy and relating to the accident. An experienced personal injury lawyer will help you navigate these complicated issues.
There is no limitation on the amount that you may be awarded for out-of-pocket expenses. If you have evidence of the payment and the expense is determined to be a result of your injury, you should be compensated. Presenting these expenses in court can actually help strengthen other aspects of your claim. Evidence of attending your treating physicians assists in proving not only the severity of the injury but also your motivation for quick recovery.
It is important to follow your doctor’s advice to the letter when recovering from an injury occurring from an accident. Follow your doctor’s advice. He or she is best able to coordinate your treatment and recovery. At law, you have an obligation to take all reasonable steps to minimize the effect of your injuries and to try to get better. This is what is referred to as a duty to mitigate.
ICBC often resists paying for unnecessary treatment and it is crucial to undertake treatments and therapies recommended by a doctor. To ensure that ICBC helps pay for your rehabilitation, ensure your primary physician supports any and all therapies ahead of time. It is tougher for ICBC to deny claims for treatments prescribed by a medical doctor.
In the case of ongoing injuries which require ongoing treatments, you are entitled to compensation for the present value of the future cost of those treatments or for the cost of assistance you require with homemaking expenses.
It is imperative that this future care is prescribed by a doctor. That doctor should outline the level and duration of future care that will be needed. The determination of the doctor, along with an occupational therapist, will dictate the costs entailed in the prescribed future care.
There are few limitations as to what can be declared future care. Housekeepers, child care, therapists, nurses, and medical equipment all qualify as a future care claim. Any assistance is included if the need for it arises as a result of the injuries received in the accident. Be sure you use an experienced personal injury lawyer to ensure that you are fully compensated.
ICBC often attempts to deduct statutory benefits you might not even have received from your damages award. An experienced personal injury lawyer will be best able to counter these arguments to safeguard, preserve and maximize your claim.
In cases of severe injury where your injuries impede your ability to become a legal spouse, this may entitle you to the monetary loss of the value of having a spouse.
The monetary justification for such a claim outlines the statistical economic advantage of a married household. This is a very difficult claim to prove, and successful litigation necessitates the use of an experienced personal injury lawyer.
When a lump sum is awarded, it is possible to ask for additional payments for the taxes and management fees to be incurred with a large amount of money.
The justification for the award for tax and management fees is that these fees and taxes would not be incurred if the injured party obtained these payments through regular employment. This is especially true if a claimant is awarded future loss amounts. Amounts awarded for future loss are usually treated as investment income. Investment income is subject to a different level of taxation than standard wages. This value must be calculated not only for the existing taxes due on the award but also for the future taxes that will be incurred from the investment income.
Management fees are also costs that are incurred with lump sum amounts that would not typically be incurred through a regular wage. If you are awarded future care or future wage loss amounts, that money is meant to last for several years. Those funds must be invested and managed by a professional. This is especially true if the recipient has a brain injury as a result of the accident. The courts will pay management fees under these circumstances. It is possible also to be awarded these payments if it is proven that the recipient has minimal money management knowledge, and the sum of money is substantial.
Taxable costs are awarded only if a lawsuit is commenced. These are set by the Rules of Court and the amount will depend on the work undertaken and the complexity of your case.
Disbursements can be awarded even if a lawsuit has not resulted. Disbursements are expenses incurred to prove your claim, such as amounts paid for medical reports, expert reports, photocopies, and faxes. Disbursements will only be reimbursed if you are not found at fault for the accident. If you are partially responsible for a crash, you will be awarded a percentage equivalent to the portion of the accident for which you are not at fault. If you are found to be entirely at fault, you could be responsible for ICBC’s costs and disbursements.
If ICBC officially submits an offer to settle, even after the start of litigation, they may not have to pay your costs and disbursements. If you continue with litigation after the formal offer to settle and are awarded less than the settlement offer, ICBC can receive reimbursement for their costs and disbursements incurred after the offer to settle. This is also the case if you decide to take an offer further on in the litigation process. There are a lot of conditions that quickly make these claims complicated and tedious. An experienced lawyer can navigate these issues for you.
David Brooke is a personal injury lawyer who lives and works in Penticton, BC at his firm, Hillside Law. When not helping clients with their cases, David can be found in the hills above Penticton riding his mountain bike or building trails.
You have compassion and you care, and I thank you again for having the chance to meet up with you. It worked for the best and I was finally qualified from Social Services for the disability I qualified for to begin with.