By Stephen M. Lloyd, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer
"I don't want to go through ICBC."
"Let's just take care of this without calling ICBC?"
"How about I give you some cash instead of going through ICBC?"
It isn't uncommon for me to hear that statements like these have been said at the scene of a car accident. Unfortunately, this reflects a common, and potentially problematic, misunderstanding about the nature of insurance in British Columbia.
Make no mistake about it, under your contract of insurance with ICBC, you must report any accident you are involved in to your insurer. ICBC needs to have notice of motor vehicle accidents in a timely manner so that they can investigate the crash, find out what happened, and be informed of any injuries. By keeping ICBC in the dark, you may prejudice any claims you may have in the future.
Think about it this way: What if your injuries, which seemed minor at first, turn out to be more serious and more long lasting than you ever thought they would be? What if there is hidden damage to your car that only becomes noticeable months after the accident? Failing to report your accident and your injuries might just prevent you from being able to collect compensation for those damages.
Once you have called Dial-A-Claim (604.520.8222 or 1.800.910.4222), reported the accident and gotten a claim number, give us a call at Paine Edmonds LLP. Make sure you get some legal advice before signing any statements or signing any authorizations to release your private information.
Friday, 13 April 2012
Thursday, 12 April 2012
What is My Case Worth? Loss of Earning Capacity Damages Explained
By Ivar Lee, Partner at Paine Edmonds LLP, and Chris Trueman, Associate at Paine Edmonds LLP, Vancouver Personal Injury Lawyers
One of the most contentious components of a personal injury claim is assessing the appropriate amount of compensation for "loss of earning capacity". These damages are meant to compensate an injured person who has evidence to prove that their injuries will limit their ability or capacity to earn income in future. This amount of compensation is in addition to other types of compensation, such as "pain and suffering" damages (see our previous blog on this topic).
In many cases, insurance companies will try to argue that an injured person's injuries do not limit their ability to earn income at all. In BC car accident cases, insurance companies such as ICBC often outright refuse to offer anything unless there is strong evidence to support such a claim. The reason why insurance companies take such a stern position is due to the simple fact that this type of compensation can be very significant, especially for a high income earner who is unable to earn as much income due to their injuries. In such cases, the amount of "loss of earning capacity" damages can often exceed the amount for pain and suffering damages. In fact, often times when the media reports a large judgment made by the courts, loss of earning capacity compensation is typically the largest component, not the award for pain and suffering. Of course, for those that do not earn as much income, the amount may not be as significant or may be far less than the pain and suffering award. Nonetheless, it is a loss that they should still be compensated for in some measure.
Given that insurance companies will often refuse to offer this type of compensation, it is very important that you retain a knowledgeable and experienced personal injury lawyer to present this claim for you. A personal injury lawyer will be able to gather the necessary opinions from medical and economic experts to prove this part of your claim. Also, most importantly, a personal injury lawyer will be able to present the legal arguments to convince the insurance company you're dealing with to soften their position and offer compensation.
The law in this area is complex but the main principles that a court must consider were recently summarized by the BC Supreme Court in the decision, Parker v. Lemon, 2012 BCSC 27:
Remember that every case is different and the evidence required and the right approach to quantify the loss will vary so make sure you speak to a knowledgeable and experienced personal injury lawyer to help you best present your case. If you would like to arrange a free consultation with one of our Vancouver
Take care out there!
One of the most contentious components of a personal injury claim is assessing the appropriate amount of compensation for "loss of earning capacity". These damages are meant to compensate an injured person who has evidence to prove that their injuries will limit their ability or capacity to earn income in future. This amount of compensation is in addition to other types of compensation, such as "pain and suffering" damages (see our previous blog on this topic).
In many cases, insurance companies will try to argue that an injured person's injuries do not limit their ability to earn income at all. In BC car accident cases, insurance companies such as ICBC often outright refuse to offer anything unless there is strong evidence to support such a claim. The reason why insurance companies take such a stern position is due to the simple fact that this type of compensation can be very significant, especially for a high income earner who is unable to earn as much income due to their injuries. In such cases, the amount of "loss of earning capacity" damages can often exceed the amount for pain and suffering damages. In fact, often times when the media reports a large judgment made by the courts, loss of earning capacity compensation is typically the largest component, not the award for pain and suffering. Of course, for those that do not earn as much income, the amount may not be as significant or may be far less than the pain and suffering award. Nonetheless, it is a loss that they should still be compensated for in some measure.
Given that insurance companies will often refuse to offer this type of compensation, it is very important that you retain a knowledgeable and experienced personal injury lawyer to present this claim for you. A personal injury lawyer will be able to gather the necessary opinions from medical and economic experts to prove this part of your claim. Also, most importantly, a personal injury lawyer will be able to present the legal arguments to convince the insurance company you're dealing with to soften their position and offer compensation.
The law in this area is complex but the main principles that a court must consider were recently summarized by the BC Supreme Court in the decision, Parker v. Lemon, 2012 BCSC 27:
[42] The approach to such claims is well
set out in the decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras. 25-32, which I summarize
as follows:
(1) A plaintiff must first prove there is
a real and substantial possibility of a future event leading to an income loss
before the Court will embark on an assessment of the loss;
(2) A future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation;
(3) A plaintiff may be able to prove that
there is a substantial possibility of a future income loss despite having
returned to his or her employment;
(4) An inability to perform an occupation
that is not a realistic alternative occupation is not proof of a future loss;
(5) It is not the loss of earnings but
rather the loss of earning capacity for which compensation must be made;
(6) If the plaintiff discharges the burden
of proof, then there must be quantification of that loss;
(7) Two available methods of quantifying
the loss are (a) an earnings approach or (b) a capital asset approach;
(8) An earnings approach will be more
useful when the loss is more easily measurable;
(9) The capital asset approach will be
more useful when the loss is not easily measurable.
Take care out there!
Monday, 2 April 2012
What is My Case Worth? Pain and Suffering Damages Explained
By Ivar Lee, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer
As a Vancouver
It is completely understandable that someone would be curious about this, especially when they are deciding whether to hire a personal injury lawyer to handle their case or deal with an insurance company on their own. In fact, quite often this
question is triggered by a settlement offer made by an insurance
adjuster working for the insurer of the person who injured them (ie. an ICBC adjuster following a car accident). It is quite common that an insurance adjuster
will make an offer early on, even though the injured person is still
recovering and does not know the full extent of their injuries and how their
life will be affected. Remember, in many cases settling early on only benefits the insurance company, not the injured person.
One of the
biggest reasons why it is difficult if not impossible to answer this question
early on after an injury is that “non-pecuniary damages” (commonly referred to
as "pain and suffering" damages or compensation) depend upon many
factors that may change or be affected over time as one recovers from their
injury or injuries. That is why it is very risky for an injured person to settle their case too soon as they may end up getting far less compensation than they are entitled to.
In reasons for
judgment released by the BC Supreme Court this past Friday (Simmavong v. Haddock, 2012 BCSC 473), Mr. Justice Greyell referenced a number of past
decisions which summarize the principles and various factors that courts
consider when assessing the amount of compensation for one's pain and
suffering.
Non-pecuniary damages
are awarded to compensate the injured person for pain, suffering, loss of
enjoyment of life and loss of amenities and the award should be fair and
reasonable to both parties (fairness is measured by reviewing comparable cases
but each case depends on its own unique facts):
[65] Madam Justice Ker summed up the
purpose of non-pecuniary damages in Trites
v. Penner, 2010 BCSC 882 as follows:
[188]
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The
compensation awarded should be fair and reasonable to both parties ...
[189] For the
purposes of assessing non-pecuniary damages, fairness is measured against
awards made in comparable cases. Such cases, though helpful, serve only
as a rough guide. Each case depends on its own unique facts ...
[Citations
omitted.]
[66] The principles underlying an award of
non-pecuniary damages were discussed by Madam Justice Gray in Dikey v. Samieian, 2008 BCSC
604:
[139] Non-pecuniary damages are
those that have not and will not require an actual out-lay of money. The
purpose of such an award is to compensate Mr. Dikey for such things as
pain, suffering, disability, inconvenience, disfigurement, and loss of
enjoyment of life. The award is to compensate him for losses suffered up
to the date of trial and that he will suffer in the future.
[140] As stated by the Supreme
Court of Canada in Lindal v.
Lindal (No. 2), [1981] 2 S.C.R. 629 at 637:
Thus 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. It therefore will not follow that in considering what part of
the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual's loss is the key and
the "need for solace will not necessarily correlate with the seriousness
of the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In
dealing with an award of this nature it will be impossible to develop a
"tariff". An award will vary in each case "to meet the
specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.).
Courts consider a
number of different factors when assessing the appropriate amount of
compensation (see below):
[67] In Stapley
v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be
considered when assessing non-pecuniary damages, at para. 46:
The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146]
that influence an award of non-pecuniary damages includes:
(a) age of
the plaintiff;
(b) nature
of the injury;
(c) severity
and duration of pain;
(d) disability;
(e) emotional
suffering; and
(f) loss
or impairment of life;
I would add the following factors, although they may
arguably be subsumed in the above list:
(g) impairment
of family, marital and social relationships;
(h) impairment
of physical and mental abilities;
(i) loss
of lifestyle; and
(j) the
plaintiff's stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v.
Clayton, ... 2005 BCCA 54).
[68] The assessment of non-pecuniary
damages is necessarily “influenced by the individual plaintiff’s personal
experiences in dealing with his or her injuries and their consequences, as well
as the plaintiff’s ability to articulate that experience”: Dilello v. Montgomery, 2005
BCCA 56 at para. 25.
As pain is a
unique experience to each person, only a knowledgeable and experienced Vancouver
If you would like
to arrange a free consultation with one of our Vancouver
Take care out there!
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