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In a personal injury, medical malpractice or motor vehicle claim (what in legal terminology are called “tort” claims) damages are available for pain and suffering and loss of enjoyment of life, past and future loss of earnings, loss of earning capacity in the future, cost of medical care and household assistance in the past and future, and out of pocket expenses. People who have provided assistance can be awarded reasonable compensation in what is known as an “in trust” claim. In addition to medical and employment evidence, developing the claim for damages may require retaining experts in vocational rehabilitation, occupational therapy and labour economics. The nature and extent of damages depends on the nature of the case. There are also ICBC benefits payable on a no-fault basis (otherwise known as Part VII benefits) that provide some wage loss protection and funds for treatment and rehabilitation not otherwise covered by the Medical Services Plan.

In Canada, there are no caps that are particularly targeted at car accident claims, but the Supreme Court of Canada has created a cap on damages for pain and suffering and loss of enjoyment of life that is applicable to all serious personal injury claims. Considering the amount of inflation, the maximum amount a court can award for pain and suffering is at present more than $350,000. That maximum amount is only awarded to the most catastrophically injured victims, such as those who have become quadriplegic or who have suffered major brain damage. There is no cap on all other heads of damages, so substantial amounts can be awarded for cost of care, loss of earning capacity and other heads of damages.

A “structured settlement” may be advantageous. A structured settlement is one in which the defendant and the insurance company arrange for an annuity which can provide for lifelong periodic payments to the injured person. The advantage is that the injured person does not have the bother and risk of managing a large sum of money and instead receives tax-free payments. The payment schedule can be tailor-made and provide for larger payments when needs might increase (for instance, when it is expected that the cost of future care will increase with age or when school tuition might be needed).

There are also benefits available from ICBC on a “no fault” basis. These “no fault”  or “Part VII” benefits are available even if the claimant is at fault for the motor vehicle accident. Any settlement or judgement for a ICBC motor vehicle is made up of a combination of tort damages and no fault benefits. All drivers involved in a crash with a British Columbia motorist are entitled to up to $150,000 in Accident Benefits from the Insurance Corporation of British Columbia. These damages are used to cover medical care, rehabilitation, lost wages, death benefits, and funeral benefits. Your Accident Benefits may also pay for attendant care and specialized aids. Accident Benefits cover: (1) every passenger in the car who is licensed and insured in BC; (2) any cyclist or pedestrian who collides with a vehicle licensed and insured in BC; and (3) anyone with a valid BC driver’s license.

If you are employed at the time of the crash and suffer lost wages as a result, Autoplan will pay 75 percent of your average weekly earnings (minus lost wages payments from other sources) or $300 per week, whichever is less. Homemakers can get up to $145 per week if they are unable to continue their normal household tasks. (This is mainly to be used to hire help outside the family.) These benefits are available as long as the disability lasts, or until you turn 65. You have 90 days from the date of the accident to apply for ICBC Accident Benefits. Of course, if your loss exceeds the amounts available from your Accident Benefits the excess loss is claimed in the tort action.

No fault benefits that were received or could have been received if application for them was made (it is important to apply for them within the 90 day time limit) are often deducted from the damages awarded in the action against the driver at fault for the injuries. It is important to note that ICBC can be responsible for paying future no fault benefits for medical expenses and wage loss even if a judge or jury in the action against the driver decides that damages for future losses or expenses should not be awarded in the amount claimed or at all. The claim for no fault benefits is against ICBC as your own insurer and the test for determining whether or not one can obtain no fault benefits is different from the test used by the court in the case against the driver. So, a claimant can “lose” in the trial against the driver but still “win” in a Part VII application for benefits against ICBC.

An experienced personal injury lawyer will ensure that you obtain appropriate damages for your injuries. Bruce Lemer has thirty years experience as an ICBC claim lawyer and has the expertise and resources to represent you properly.

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