If You're Injured in a Motor Vehicle Accident

This script describes making a personal injury claim, going to court, and dealing with the Insurance Corporation of British Columbia, called ICBC.

Accident victims may be entitled to compensation

If you’re hurt in a motor vehicle accident, you may be able to receive two types of compensation:

1. No-Fault Accident Benefits: Everyone in BC who owns a vehicle must buy basic insurance from the Insurance Corporation of British Columbia, or ICBC. This insurance pays money, called “accident benefits,” to people injured in a vehicle accident. Even if you caused the accident, ICBC will pay you these no-fault accident benefits, as long as you’ve met the conditions of this insurance. Generally, these benefits include temporary total disability benefits (i.e., disability benefits for lost income to a maximum of $300 per week while you are disabled due to your injuries) and medical and rehabilitation benefits.
2. Damages: If the accident wasn’t your fault (or only partly your fault), you also have the right to “damages” for your pain and suffering, lost past and future wages, future care, out-of-pocket expenses and other losses. This is called a “tort” claim. These damages aim to put an injured person, who didn’t cause the accident, in the same position they would have been in had the accident not happened (as far as money can do this).

How do you make a claim?

You make a claim for accident benefits and/or damages through ICBC. Report the accident by calling ICBC’s Dial-A-Claim at 604.520.8222 within the lower mainland or 1.800.910.4222 elsewhere in BC. An ICBC adjuster will then meet with you. The adjuster will investigate the accident and decide who caused it. The adjuster will also review your medical information and expenses, so keep all your receipts.

See your doctor

If you’re injured, see your doctor as soon as possible, as your doctor is in the best position to prescribe treatment, such as medication and physiotherapy. ICBC will then consider funding the cost of that treatment.

Report the accident promptly

You have to promptly notify ICBC of the accident and give a written report or statement to ICBC no later than 30 days after the accident. The report or statement sets out the accident circumstances and details of your injury or injuries. Some people prefer to see a lawyer before talking with ICBC. If you do that, your lawyer can report the claim to ICBC for you.

When must you submit your claim for no-fault accident benefits?

To claim accident benefits, you must submit a completed accident benefits claim form to ICBC within 90 days after the accident. If you’re entitled to accident benefits, you should start to receive payments soon after that.

What about getting damages?

If someone else was fully or partly to blame for the accident – meaning you’re entitled to tort damages – ICBC will typically offer you money to settle or resolve your claim. Normally you won’t want to settle a personal injury claim until your medical condition is stable and your doctor can say when your injury will probably be resolved and whether you will have any lasting effects. Then, if you agree with ICBC’s offer, you can settle your claim. You won’t be able to make any further claims later, even if you suffer new and other consequences as a result of your injuries which you hadn’t anticipated. You will also have to sign a “full and final release of all claims” before receiving the settlement money.

What if you disagree with ICBC?

If you don’t agree with ICBC’s offer or its decision about who is at fault, or if you don’t know if the offer is fair, you can see a lawyer for advice. If you or your lawyer can’t reach an agreement with ICBC, you may sue in court. ICBC’s decision as to who is at fault or what amount is fair for tort damages isn’t binding on a court, and the judge will decide the matter without any reference to what ICBC decided. ICBC has a “Fairness Process” that you can also use if you’re not satisfied.

There are three situations where you may have to sue in court

1. Refusal to pay accident benefits: If ICBC refuses to pay any accident benefits, or it pays less than you think is fair, you can see a lawyer for legal advice. If you decide to sue, you have to start your lawsuit within 2 years after the accident (or within 2 years from the date of the last no-fault benefits payment, if you received some benefits).
2. Decision that you’re at fault: ICBC may decide that you’re totally or partly at fault for the accident. To claim damages or compensation for your injuries in addition to no-fault accident benefits, you would have to sue the owner and driver of the other vehicle in the accident. This must be done within 2 years of the date of the accident.
3. Refusal to pay damages: ICBC may not want to pay as much damages as you think you should get for your pain and suffering, wage loss, business loss or other losses. This may happen even though ICBC decides that you were not at fault. In this case, you’d have to start a lawsuit within 2 years of the accident.

What deadlines are there for suing in court?

Any court action must be started within 2 years from the accident date, or you lose all right to recovery. In some cases, you also have to give notice of your claim sooner (for example, if a municipality is involved, you must give the municipality notice of your claim within 6 months of the accident).

Where do you sue?

1. Small Claims Court: Sue in Small Claims Court if you are suing for $25,000 or less. You don’t need a lawyer in Small Claims Court, but you can have one. Check scripts 165 to 169 on Small Claims Court.
2. Supreme Court: Sue in BC Supreme Court if you are seeking more than the $25,000 limit in Small Claims Court. You should have a lawyer if you choose Supreme Court because the procedures are more complicated.

How much will it cost?

If you’re suing for damages, you have to pay your own lawyer. Most lawyers practicing in this area accept cases on the basis of a “contingency fee agreement.” This means that you only pay your lawyer’s fees when and if you recover damages at the end of your legal action, based on a percentage of what you recover. Discuss this with your lawyer when you first see him or her. ICBC pays the lawyer for the people you are suing. If you win your lawsuit, the court may order the other side to pay some of your legal fees.

Lawsuits in Supreme Court don’t usually go to trial because both sides settle or resolve the matter before trial, but this isn’t always the case. Sometimes, cases go to mediation and an independent, unbiased person acts as a mediator to help you and the other side reach a settlement agreement.

Can ICBC sue you?

Yes, ICBC can sue you in some cases. For example, if you drive while drunk and cause an accident that injures a person, that person may sue you. ICBC can pay the injured person and then demand that you pay it back. The various situations in which ICBC can collect that money from you are quite complex. So if you’re involved in such a situation, you should get legal advice.

Caution

You should consult a lawyer before you proceed with a personal injury claim. It’s critical that you know all your rights and are prepared. Insurance companies, however fair, are in a conflict of interest about what to do with your claim.

Summary

If you’re injured in a motor vehicle accident, you can claim accident benefits from ICBC. If the accident wasn’t your fault, you can also claim damages for pain and suffering and other losses. The ICBC adjuster can settle your claim if you agree. Because that agreement will be binding, you may want to see a lawyer before you agree to a settlement to find out if the offer is fair. If you can’t agree on the value of your claim, or who is responsible for the accident, a lawsuit and a trial may be necessary. There are strict time limits for when a lawsuit must be started, and if you miss the time limit, you lose your right to sue. So you should see a lawyer as soon as possible after an accident for legal advice.

Where can you find more information?

• For more information on accident benefits and damages for accident victims, refer to script 185 on “Insurance Benefits and Compensation for Accident Victims”.
• See the ICBC website at www.icbc.com.

[updated January 2013]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

An award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In contract law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract, or settlement. See "offer to settle."

In family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."