If you have been injured then here are a few steps you should take after the collision.
At the scene, deal with your injuries first. If you need to go to the hospital, don't hesitate to do so. That's one of the benefits of our healthcare system.
As soon as reasonably possible, make complete and detailed notes about how the collision happened. Draw a diagram to show the layout of the roadway, the paths of the vehicles as the collision unfolded, the point of impact between the vehicles, and where the vehicles came to rest. These notes will help you to refresh your memory later.
You should promptly report the collision to ICBC. Call ICBC's Dial-a-Claim toll-free number (1.800.910.4222). Note that ICBC records these incoming telephone calls.
ICBC usually will ask to take a statement from you. You should not give a statement to ICBC until after you consult a lawyer. While you might be required to give a statement to ICBC, sometimes you don't have to give ICBC all the information it wants. Andrew can advise you on that point. If your medical condition or medication affects your ability to think clearly, then don't give a statement to ICBC until you're able to think clearly.
If ICBC takes a statement from you, don't sign it right away. Instead, ask for a printed draft copy to take home so that you can review it carefully for accuracy.
A person injured in a motor vehicle collision has two types of potential claims:
The tort claim is made by the injured person against the other driver(s) and owner(s) involved in the collision to obtain compensation for the following:
The injured person might be a driver or passenger in one of the vehicles, a motorcyclist, a pedestrian, or a bicyclist.
If the injured person is partly at fault for the collision, then her tort compensation can be reduced to the extent of her fault. For example, if the court decided that an injured pedestrian was, say, half at fault for a collision because she started across a street and walked into the path of an oncoming vehicle without looking to see if it was safe to proceed, then her damages would be reduced by half to account for her half-share of fault for the collision.
Part 7 benefits are intended to provide an injured person with basic accident benefits, such as reimbursement for certain medication expenses, therapy costs (but not user fees), and mileage to and from your medical appointments. Part 7 benefits also include temporary wage loss benefits.
Am I entitled to Part 7 benefits?
ICBC cannot refuse to pay you Part 7 benefits only because you are at fault, or partly at fault, for the collision. Also, Part 7 benefits are not reduced by the proportion of your fault for the collision.
The issues involved in deciding whether an injured person is entitled to Part 7 benefits, and, if so, what benefits he ought to receive, can be very complicated. If ICBC has denied your claims for Part 7 benefits, you should promptly consult a lawyer.
What do Part 7 benefits cover?
If you pay for medications or therapy for your collision injuries, and you are not entitled to be reimbursed by any other source (such as a benefits plan through your work), then these expenses are often reimbursed to you by ICBC as Part 7 benefits. However, ICBC is typically not required to reimburse you under Part 7 for user fees charged by physiotherapists, massage therapists, chiropractors, and others.
Part 7 accident benefits include a basic wage loss benefit called Total Temporary Disability benefits ("TTDs"). If you qualify for TTDs, ICBC is required to pay these benefits to you for the time that you remain unable to work due to your collision injuries. If you try to return to work after the collision but your recovery falters and you are again totally disabled from work, then ICBC should reinstate your TTDs until you are able to return to work again.
If you are entitled to receive wage-loss benefits from certain other sources (such as disability benefits through the Employment Insurance Commission, or weekly indemnity through a private plan), then you might be required to exhaust those benefits first, before ICBC is required to start paying TTDs to you.
If it can be proved that you were not wearing your seat belt, or that you did not properly adjust your headrest, ICBC will often allege "contributory negligence" on your part. That means that, allegedly, your failure to wear your seat belt or use your headrest properly made your injuries worse than they would have been if you had worn your seat belt or properly adjusted your headrest.
If there was a functioning seat belt available for your use in the vehicle but you chose not to use it, and the defence proves that your injuries would have been less severe if you had worn the seat belt, then the court might reduce your compensation.
Similarly, if your seat in the vehicle was equipped with an adjustable headrest and you failed to adjust it to the proper setting, and the defence proves that your injuries would have been less severe if you had properly adjusted the headrest, then the court might reduce your compensation.
Special rules apply to children and young adults with respect to seat belt and headrest use. The question becomes whether the child was sufficiently mature to appreciate the purpose of seat belts or headrests and the risks associated with not using them properly. For example, the court will not fault a 6-month-old infant for not strapping himself into the infant car seat. (ICBC might seek to lay some of the blame on the driver for failing to ensure that the infant was properly strapped into the car seat.)
In cases where the court finds contributory negligence based on the failure to use a seat belt or headrest properly, the usual maximum deduction is 25 per cent. In some instances the court may order a deduction of less than 25 per cent for contributory negligence.
Similar rules apply in the case of a motorcyclist or a bicyclist who fails to wear a proper helmet.
There are very important time deadlines (called "limitation periods") in motor vehicle collision cases. If your limitation period is missed by even as little as one day, you may be prevented from seeking compensation for your injuries and other losses simply because you were that one day late. Because every case is unique and these time deadlines are so important, you should consult a lawyer immediately about the circumstances of your particular case for advice about time deadlines that may apply to you.
There are some special rules in cases involving Infants (meaning children under 19 years of age) who are injured in motor vehicle collisions.
If an Infant must start a lawsuit to obtain compensation for her injuries and losses, she does so by means of a Litigation Guardian. A Litigation Guardian is an adult whose legal interests are not opposed to those of the Infant, and who agrees to be responsible for the Infant's legal costs and expenses associated with the lawsuit. The Litigation Guardian is named as a party in the lawsuit, instructs the lawyer for the Infant, and must act in the best interests of the Infant. Often the Litigation Guardian is one of the Infant's parents.
If an Infant is able to settle his claims for compensation arising from a motor vehicle collision, that settlement must be reviewed and approved by the Public Guardian and Trustee of British Columbia, and sometimes by the court, before it is binding on the Infant. This requirement is intended to provide an extra layer of legal protection for Infants, who are considered vulnerable in the eyes of the law.
Andrew Kemp provides a no-charge initial consultation for people with personal injury claims.
Please note that before Andrew can discuss the details of your case with you, he will need to know the names of all of the other drivers and registered owners involved in the collision. Once he has those names, he will perform a "conflict check" to ensure that he does not already act for someone else involved in the collision. If you do not know the names of all of the other people involved in the collision, Andrew can usually obtain that information from the police report, or from ICBC.
During the initial consultation Andrew will discuss your case with you and give you summary advice on your rights, responsibilities, and options. Then you will be able to make informed decisions on how you wish to proceed.
Please bring to the initial meeting all of your paperwork related to the collision, such as a copy of your statement to ICBC, any letters or documents from ICBC, the police report, your receipts, your notes and photographs of the collision scene, pay stubs, and doctor's notes regarding your time lost from work.
The earlier you speak to Andrew about your case, the better your chances may be of bringing it to a successful conclusion. In your initial meeting with Andrew, he will:
Find out what to do next by calling 1.877.964.5544. Andrew can help you receive the compensation you need for your pain and suffering, lost wages, and the costs of medical treatment.
When Andrew acts on a contingency fee agreement (percentage agreement), you do not pay anything until your case is over. During the case Andrew carries the costs to have you examined by expert medical witnesses, the costs of obtaining medical reports and records, and the other necessary costs which arise in personal injury claims. Andrew will not make you borrow money to pay any of your legal expenses as your case proceeds.
Andrew knows that your living expenses still must be paid even though you cannot work due to your injuries. Insurance companies know that, too. If you need financial help while your claim is under way, Andrew can help you obtain a "litigation loan" so that you can cover your living expenses. Then you can try to settle your claim when it's time to do so, instead of being forced to settle your claim too early because you're desperate for money.
The foregoing is general legal information only, based on the law of British Columbia. Readers should consult a lawyer to obtain specific legal advice about their particular situation.
Your Prince George and northern BC Lawyer and Mediator.