Introduction to "What is a TORT CLAIM? How is this related to expenses from personal injuries?
[Part III of article on "Making your ICBC Claim for Personal Injuries Suffered from a Motor Vehicle Accident
in BC" by personal injury and trial lawyer
| What is a Tort Claim?
| Who is Entitled to a Tort Claim?
| How to Make a Tort Claim |
Some definitions & comments about "Tort" and "Tort Law".
"Tort law is traditionally governed by case law, although provinces in Canada are increasingly introducing
'no fault' insurance schemes governing injuries arising from motor vehicle accidents. Tort law can also be affected by provincial negligence legislation, such as British Columbia's
Negligence Act, R.S.B.C. 1996, c. 333"
[quot. fr. p. 170, Legal Research and Writing / Ted Tjaden.
©2001 Irwin law Inc. Toronto. ISBN: 1-55221-050-2]
*********
A copy of the BC Negligence Act RSBC 1996
is available online from BC Queens Printer ©2004 (for personal research use)
<www.qp.gov.bc.ca/statreg/stat/N/96333_01.htm>
*********
Definition - TORT "Injury; wrong. The breach of a duty imposed by law, whereby some person acquires
the right of action for damages." Lawson v. Wellesley Hospital (1976), 9 O.R. (2d) 677 at 681 (Ont.C.A.)
"In very general terms, a tort is a civil wrong, other than a breach of contract, which the law will redress by an
award of damages" Id. at 682, quoting Fleming, The Law of Torts, 3d ed.
[the above cited on pp.212-213 in Canadian law Dictionary, by John Yogis, Q.C., "adapted from Law dictionary / by Steven H. Gifis" T.p. verso.
©Copyright 1983 by Barron's Educational Series, Inc.
ISBN 0-8120-2116-9
Library of Congress Card no. 83-15372]
************
A tort claim is a claim for expenses not paid by ICBC as No Fault Benefits but
that arise as a result of the injuries you have sustained in the motor vehicle
accident, the wage loss or loss of opportunity to earn income either in the past or
in the future due to your injuries, and an amount for pain and suffering.
All treatment expenses which you incur because of your injuries are recoverable
under a tort claim. Additionally, you are entitled to an amount for your mileage
and parking expenses that you incur to obtain treatment.
Your wage loss claim may include such things as retraining if necessary, special equipment to accommodate your injuries while you are at work, an award for loss of
employment opportunities and an award for loss of earning capacity. The
amount that you are awarded for pain and suffering is determined with reference
to what Judges have awarded in cases similar to yours in the past. Such things
as the extent of the injury, how it has affected your life, how it will continue to
affect your life and the treatment which has been necessary are considered in
determining your award.
You can only make a claim if you are the victim of another person's negligence.
The person who is negligent may be the driver of the car that you are in or the
driver of another vehicle. If you are found to be in part responsible for the
accident, the portion that is found to be your fault will be deducted from your
claim. If your injury was not the result of another person's negligence, you
cannot make a tort claim.
ICBC is aware that if another person is at fault for your accident, you are entitled
to make a tort claim and they will typically at some point make an offer to settle
your tort claim, regardless of whether you have suggested settlement to them.
Your right to make a tort claim is preserved by filing a Writ of Summons with the
Court. If you have not filed a Writ of Summons with the Court within two years of
your motor vehicle accident, you will lose your right to make a tort claim.[emphasis added]
SETTLING YOUR CLAIM WITH ICBC
WHEN SHOULD YOU SETTLE?
ICBC will often attempt to settle your claim as soon as possible. Once your claim
is settled, you will not be entitled to any further money or assistance from ICBC in
relation to the injuries you sustained in the motor vehicle accident. My advice to
clients is that they should not settle their claim until they know whether they will
be able to return to work and their pre motor vehicle accident recreational
activities and until their care givers are able to give them an indication of how
their injuries are likely to affect them in the future. I tell clients that they do not
have to be fully recovered prior to settling but it is necessary to know how the
injuries are likely to affect them in the future. If there is a prognosis and the care
givers are confident in their prognosis, the claim can be settled on the basis of
the care giver's expectations.
HOW MUCH SHOULD YOU SETTLE FOR?
Every case is unique and it is impossible without knowing all of the details of your
particular claim to determine what will compromise fair and full compensation. In
settling your claim you need to ensure that you are being compensated for your
pain and suffering in a way that is similar to other individuals who have had the
same injury as you. You want to make sure that you are being fully
compensated for any wage loss that you have incurred, including any retraining
that is going to be necessary or any modifications to you work environment. You
need to ensure that if there is a possibility that in the future your ability to work
will be affected by you injuries that you have been compensated for this. Finally,
you must be compensated for all treatment expenses that you have incurred
while ensuring that all treatment that has been recommended for you in the
future is also being paid for.
WHAT HAPPENS AFTER YOU SETTLE?
After you settle your case, you will be provided with a cheque by ICBC and you
will be required to sign a release. Signing the release and accepting the cheque
will prevent you from seeking money or assistance from ICBC in the future in
relation to the motor vehicle accident that you are settling you claim for. This is
true regardless of whether your injuries and the impact which they have upon you
worsens after you settle, of if new treatment recommendations are made for you.
If after settlement you determine that you have not been fully compensated,
signing the release eliminates the possibility of obtaining further compensation
form ICBC. It is very important to ensure that prior to settling your claim with
ICBC you injuries and their potential impact upon you have been fully
investigated.
LAWYERS - DO YOU NEED A LAWYER WHEN DEALING WITH ICBC?
You do not need a lawyer to deal with ICBC, but you must be cautious in
proceeding without a lawyer. There are a myriad of issues which may arise in
even the most straightforward of claims. It is important that you take the time to
ensure that you are fully knowledgeable of your rights in dealing with ICBC and
that you have a complete understanding of your injuries, the impact upon your
employment, and the implications for the future in terms of ongoing pain,
necessary treatment and restrictions on you ability to earn an income. You need
to know what the Court's consider fair compensation in situations similar to
yours. It is not the adjuster's responsibility to either educate you about these
things or to ensure that you are being fairly and fully compensated. This is your
responsibility and if you choose to proceed without a lawyer, spend the
necessary time to educate yourself. If you do not obtain fair and full
compensation prior to settling you claim, there is no opportunity to correct your
error.
A lawyer will ensure that you are fairly and fully compensated for your
injuries and that all potential aspects of your claim are considered. Lawyers with
experience dealing with ICBC know what potential issues may arise and how to
deal with them. They have experience and knowledge of what information is
necessary to support all aspects of you claim and know what the Court considers
fair and full compensation. A lawyer will ensure that you do not settle your claim
prematurely, that you do not lose your right to make a tort claim and that you are
compensated for all of your losses.
Rose Keith, Barrister & Solicitor
Vancouver, BC
CONTENTS OF PREVIOUS SECTIONS OF THIS ARTICLE
Part I
PART II
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Rose Keith, Barrister & Solicitor author of the above article is a content contributor to
CanadaLegal.info. [Note: the definitions and commentary about "Tort Law" above
in the colored box, is not from Ms. Keith, it is provided by the editors of this site as extra information for readers to refer to]
Her practice in Vancouver focuses primarily on the areas of Personal Injury Law and BC Employment / Contract Disputes
where she represents both employees and employers.
A detailed profile of Rose is available on this site click here
A detailed street map to her offices in downtown Vancouver showing her location and its proximity to the Provincial and Supreme Court buildings
is available click here
See also her web site at www.rosekeith.bc.ca
******************
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