PERSONAL INJURY — COMPONENTS OF YOUR CLAIM

This article discusses personal injury law and ICBC claims. The information is not intended as an alternative to seeking independent legal advice about your issues.

Various types of entitlements exist to which an accident victim may be allowed.

pain
It is possible to claim compensation for items which are not readily calculable in dollars. This head of damage is commonly referred to as general or “non-pecuniary” damages and is meant to compensate an accident victim for pain and suffering. The value of your claim depends on the nature and extent of the injuries. While it is not possible to put an exact dollar value on general damages, your personal injury lawyer can make a reasonable assessment by comparing your injuries with the reported decisions.

loss of earnings
Unlike pain, the exact dollar value of compensation in relation to loss of earnings can be determined by reference to mathematical calculation. Carefully track and document the amount of work lost as a result of your injury, which loss may be reflected in the income taxes. The injury may affect you in the future, too. Where the injury is likely to result in loss of opportunity to earn income, expert reports should be obtained to determine the amount to be paid in today’s dollars to provide future compensation. Your personal injury lawyer will typically carry the cost of the expert reports as disbursements. It is not necessary to prove that a loss of future earnings is more probable than not, only that there is a "real possibility" that the loss may occur.

Four (4) basic questions exist for determining whether a person has a diminished earning capacity: (Brown v. Golaiy (1985, BSSC); Kwei v. Boisclair (1991, BCCA))

    1. Has the person been rendered less capable overall of earning income from all types of employment?
    2. Is the person less marketable or attractive as an employee to potential employers?
    3. Has the person lost the ability to take advantage of all job opportunities which might otherwise have been open to the person had the injury not occurred?
    4. Is the person less valuable to himself or herself as a person capable of earning income in a competitive labour market

An actuary can determine the today’s value of that loss over the course of the lifetime of the person (multiplying to career expectancy age 65).

special damages
It is possible to claim compensation for items which are readily calculable in dollars. These damages include out-of-pocket expenses for such items as prescriptions, physiotherapy and/or chiropractic treatments, cost of travel to treatment, housekeepers, gardeners, and other people hired to assist you. Keep all receipts because the plaintiff is entitled to reimbursement for out-of-pocket expenses incurred as a result of the accident. Moreover, future care and other expenses may be claimed for those items listed above. These expenses must be medically supported and would arise in the case of permanent injuries. An occupational therapist would be in a position to asses the needs of the injured party. Then just like for future loss of earnings, an actuary would be in a position to provide the today’s value of these future expenses (multiplying to life expectancy age 75).

interim coverage
Pursuant to Part 7 of the Insurance Motor Vehicle Act (Regulations) an individual may be entitled to interim medical coverage and wage loss. These benefits are sometimes called total temporary disability (TTD) benefits. These are “no fault” benefits so even the liable party would be entitled to coverage if totally disabled.

Another form of interim coverage includes “collateral benefits” usually from a short term disability provider through the employer (eg. Great West Life or London Life for interim wage loss coverage; Blue Cross for interim medical coverage). These organizations expect repayment if it turns out that ICBC is responsible to pay for the injury at the end of the day.

disbursements
Costs and disbursements may be recoverable.


© Edwards and Company

 

© Edwards & Company